The Decline of the Jury Trial

08-02-2013

The jury trial is, as Alexis de Tocqueville understood, one essential incubator of American democracy. The jury trial is the only space in which most people will ever be forced to sit in judgment of their fellow citizens and declare them innocent or guilty; or, in a civil trial, to judge whether one party’s wrong requires compensation. The experience of being a juror, Tocqueville saw, inculcates in all citizens the habits of mind of the judge; it “spreads to all classes respect for the thing judged and the idea of right.” Juries, he wrote, are “one of the most efficacious means society can make use of for the education of the people.”

If the experience of sitting in judgment as a juror is a bulwark of our democratic freedoms, we should be worried. As Albert W. Dzur writes, the jury trial, once the “standard way Americans handled criminal cases,” is now largely absent from the legal system. The jury trial “has been supplanted by plea agreements, settlements, summary judgments, and other non-trial forums that are usually more efficient and cost-effective in the short term. In addition to cost and efficiency, justice officials worry about juror competence in the face of scientific and technical evidence and expert testimony, further diminishing the opportunity for everyday people to serve.”

Dzur offers a clear case for the disappearance of the jury trial:

[J]uries in the United States today hear a small fraction of cases. In 2005 the Bureau of Justice Statistics reported that juries heard 4 percent of all alleged criminal offenses brought before federal courts. State courts match this trend. Legal scholars Brian J. Ostrom, Shauna M. Strickland, and Paula L. Hannaford-Agor discovered a 15 percent decline in total criminal jury trials in state courts over the last 30 years, compared with a 10 percent decline in criminal bench trials, in which a judge issues the verdict. They also found a 44 percent decline in civil jury trials compared with a 21 percent decline in civil bench trials.

So what does the retreat of Jury trials signify? For Dzur, the answer is that the jury system is an important part of our justice system because it performs a “constructive moral function,” by which he means that juries “force widespread sobriety about the real world of law and order.” Juries can challenge “official and lay attitudes regarding the law. This sobering quality of juries is particularly needed now.” Here is how Dzur characterizes more fully the “sobering quality of juries”:

A juror treats human beings attentively even while embedded within an institution that privileges rationalized procedures. Not advocates, prosecutors, or judges, jurors are independent of court processes and organizational norms while also being charged with judicial responsibility of the highest order. Their presence helps close the social distance between the parties and the court. The juror, who contributes to what is a political, juridical, and moral decision, becomes attuned to others in a way that triggers responsibility for them. Burns notes how jurors’ “intense encounter with the evidence” helps them engage in self-criticism of the “overgeneralized scripts” about crime and criminal offenders they may have brought with them into the courtroom.

In other words, juries are institutional spaces where citizens have the time to attentively consider fundamental moral and legal questions outside of the limelight and sequestered from public opinion, government pressure, and the media circus. Since juries are the institutions where we practice moral judgment, Dzur argues that the loss of juries means that “we are out of practice. Lay citizens no longer have opportunities to play decisive roles in our justice system.”

The recent jury decision in the George Zimmerman case is an example of a jury resisting popular calls for guilt and making a sober judgment that the facts of the case were simply not proven beyond a reasonable doubt. Juries can also resist the government, as might happen if Edward Snowden would return to the United States and put himself on trial before a jury. Such a jury could, and very well might, exonerate Snowden, exercising its fundamental right of jury nullification in the interest of justice. Snowden’s refusal to return is, in some part, a result of the diminished practice of moral judgment reflected in the diminishment of the jury.

Jury judgments are at times surprising and can, in extraordinary cases, go against the letter of the law.  But the unpredictability of jury verdicts makes them neither irrational nor thoughtless. They are often intolerant and unfair, but this makes them neither racist nor unjust. Amidst the unquestioned hatred of all discrimination, we have forgotten that discrimination, the art of making relevant distinctions, is actually the root of judging. In our passion for rationality and fairness, we sacrifice judgment, and with judgment, we abandon our sense of justice.

What acts of judgment exemplified by juries offer are an ideal of justice beyond the law. Plato called it the idea of the good. Kant named it the categorical imperative. Arendt thought that judgment appealed to common sense, “that sense which fits us into a community with others.” What all three understood is that if morality and a life lived together with others is to persist, we need judgments that would invoke and actualize that common moral sense, that would keep alive the sense of justice.

For your weekend read, take a look at Dzur’s report on the loss of the juries. Also, you might revisit my own essay on this theme, “Why We Must Judge,” originally published in Democracy: A Journal of Ideas.

-RB