The Jury as Direct Democracy


The Jury System

The jury has long been a central part of justice systems across the world, with a history long and colourful. In ancient Greece, jurors wrongly condemned Socrates to death by hemlock for crimes against the state, while in England jurors went to prison themselves rather than convict the Quaker William Penn for preaching the word of God in the street. From ’12 Angry Men’ to ‘To Kill A Mockingbird’, the jury has fascinated writers and public alike for generations. The enduring appeal of the citizen jury points to the central role it plays in the justice system for everyday people. It remains, outside of the referendum, one of the few direct democratic structures left in many of today’s western democracies countries.

It has come a long way over the years. The days of the all-white male land-owning jury has slowly made way for the ethnically diverse, gender balanced, class-neutral institution that we see today. This battle for equality has been a long fight, raging over the centuries – it wasn’t until 1860 the first African-American served on a jury, and US federal juries were restricted to ‘elite’ individuals until 1968, keeping the common man from participating. In England, the property qualification for jury membership was only abolished as recently as 1972.

Local Justice

The jury originally evolved as an instrument of  local justice, composed of members of the community, many of which would have personal knowledge of the crime and the defendant. It was thought the sum of their experiences of the defendant could only help reach a more just verdict. This idea of justice has been left at the wayside. In the US, the most notable blow to this ideal was dealt in 1807 when former vice president Aaron Burr was arrested on suspicion of the treason. He had allegedly arranged for a group of thirty armed men to sail down the Mississippi to seize the city of New Orleans. Prior to his arrest, Republican papers were loaded with details of Burrs grand plans to invade Mexico, secede the south-western states from the US, and form an empire stretching from Mississippi to Mexico City.

The federal jury was set for Richmond, a heavily Republican area, where Thomas Jefferson, his political nemesis, tried to stuff the federal  jury with his own supporters. Burr argued that he would find it difficult to achieve a fair trial due to the publicity of the trial, and that he should have the right to challenge the individual jurors to see if they were biased against him. His argument was successful and has led to the current situation, where knowledge of a case is seen as a disqualification for jury participation. Mark Twain, the acclaimed American author, activist, and humorist, best summed up the result of this controversial ruling:

A minister, intelligent, esteemed, and greatly respected; a merchant of high character and known probity; a mining superintendent of intelligence and unblemished reputation; a quartz-mill owner of excellent standing, were all questioned in the same way, and all set aside. Each said the public talk and the newspaper reports had not so biased his mind but that sworn testimony would… enable him to render a verdict without prejudice and in accordance with the facts. But of course such men could not be trusted with the case. Ignoramuses alone could mete out unsullied justice.

Defence Against the State

In colonial America, the jury was often used by the people to defy British rule. In one particularly famous case, customs officials seized a ship of the Boston merchant John Hancock, who was suspected of smuggling. The jury-less admiralty court decreed the seizure lawful and ordered the vessel and its cargo to be turned over to the customs officials. Hancock went on the attack, and counter-sued the customs officials for trespass, which guaranteed him a jury trial. At the trail, the jury was instructed by the judge that the admiralty judgement could not be challenged in this way. The jury, however, ignored the judges advice and found in Hancock’s favour, ordering the customs agents to personally bear the costs of repaying Hancock for the value of his ship and cargo. The custom officials appealed this ruling all the way to the British King, whereupon Hancock dropped the case. But his political point had been made, and British custom officials would now think twice about seizing another American ship for fear of a long and costly legal battle.

The Hancock case makes clear a key difference between juries of the past and present. Today, the jury is purely a fact finding body. There is a strict separation of powers between the judge and the jury. The judge decides on the points of law, and the jury decides on the guilt or innocence of the defendant based on the facts of the case. It was not always this way. Nineteenth century American criminal and civil juries were actually instructed that the judges advice on the nature of the law was not binding. If the jury did not think the law was fair and just, they could disregard the law and decide the fate of the defendant on their terms.

Juries Deciding the Law

By the end of the 19th century, the law finding powers of English and American juries were effectively curtailed. In 1893 two american sailors, Sparf and Hansen, were accused of murdering a fellow shipmate while working aboard the American ship Hesper in the Pacific, one thousand miles from Tahiti. At their first trial, the jury were reluctant to give a guilty verdict for the crime, which would mean the death penalty for the two men. Seeking clarity, the jury asked the judge if they could find him guilty of the lesser crime of manslaughter. The judge replied:

as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court‘.

Sparf and Hansen appealed this interpretation of the law all the way to the Supreme court, Their appeal was denied, effectively ending the right of the jury to decide law. To this day, only the constitutions of Maryland and Indiana retain the rights of juries to decide matters of law in criminal trials. This strict division of labour between the judge and the jury has led to a vast reduction in the powers of the jury, and a centralisation of power in the hands of the judiciary. Juries had lost their power to reject the validity of laws decided by the political institutions of the state.

The Representative Ideal

The ideal of the representative jury, a trial by a cross-section of your peers, has had a quite chequered history. The English Crown protected their Jewish moneylenders by requiring the jury of cases brought by a Christian against a Jew contained equal numbers of  Jews and Gentiles. To encourage international trade they also guaranteed any foreign merchants accused of a crime a jury of six foreigners and six Englishmen. All female ‘Jury of Matrons’ were common whenever it was necessary to certify if a female defendant was feigning pregnancy to prevent execution or in the case of an inheritance dispute.

These stipulations, so designed to protect defendants against any prejudices or systemic biases, were exceptions to rule. Women were excluded from juries due to what was thought of as their inherent defect – ‘proper defectum sexus’. The property qualification for jury membership was also used as a tool of class warfare, disenfranchising the poor and landless. African-americans were systematically excluded from jury duty, helping to prolong the racial discrimination of the slave trade. One county in Kentucky had not a single black juror between 1906 and 1938, even though 8,000 of the 48,000 population were black.

Balancing Biases Vs Group Experiences

The 1975 US Supreme Court ruling which forced all state courts to select from cross-sectional jury lists, finally brought the jury into its modern form. The kangaroo courts of the southern states, were a thing of the past for African-americans. The legacy of the rigged jury has led some to think of the jury as a way of balancing competing group interests and biases. Despite the long history of legal abuse by non-representative juries, juries should not be seen just a battle between cliques of citizens. They also operate as a judicial form which is heavily dependent on the different life experiences of the jury members.

Aristotle thought that democracy’s greatest virtue was the way it allowed people of all types to come together to create a collective wisdom that none could achieve on their own. From a computational point of view, one can imagine democracy working as a large network of computers nodes all chomping their way through a limited amount of data generated by their own life experiences. Each node comes up with it’s own ‘world model’ and makes decisions and interprets evidence based on this model. Two people, with radically different life experiences, could have very different opinions, with no inherent malicious intent.

The Deliberative Jury and the Unanimous Verdict

The origins of the unanimous verdict were probably closely linked to the medieval Church, who placed a premium on unanimity as ‘the infallible sign of God’s voice.’ Unanimity forces jury members to deliberate, justify their opinions, and ensure a consensus outcome. In a ironic twist of fate, the US Supreme Court authorized states to abandon the unanimous verdict in 1972. The removal of unanimous verdicts threatens the mere tokenism of minority jury representation if majorities can simply vote en bloc. The political theorist and 7th US Vice-President, John Calhoun, put it most eloquently:

‘If the necessary of unanimity were dispensed with and the finding of a jury made to depend on a bare majority, jury trial, instead of being one of the greatest improvements in the judicial department of government, would be one of the greatest evils…. It would be, in such case, the conduit through which all the factious feelings of the day would enter and contaminate justice at its source.’

The empirical evidence shows that juries do tend to quit deliberating once they reach the required number of jurors for the majority decision. Indeed, only 1 in 20 juries fail to reach a unanimous verdict, with the evidence showing jurors are not so wedded to narrow group loyalties and that jurors of different ethnic groups are able to overcome their biases through deliberation. The removal of unanimity has little supporting evidence, and it can be easily viewed through the prism of power relations and control.

Lessons For Direct Democracy

Proposals for direct democratic institutions based on Sortition, the random sampling of citizens to decide issues of policy and legislation, have lots to learn from the jury. It shines forth as a beacon for effective decentralised, locally controlled institutions. However, deciding matters of law and justice in the courtroom differ greatly from the realm of legislation and policy. The simple binary ‘guilty/innocent’ choice of modern of juries on individual cases, are radically different from the broad systemic nature of decisions on legislation or policy. Policy and legislation has the power to effect the lives of the whole society, not just the defendant(s) in question. The small sample size of a dozen or so jurors is unlikely to represent the broad spectrum of opinion about issues of societal importance. The size of a legislative ‘jury’ needs to be large enough to be able to reflect this holistic view of society.

Direct democracy can also learn much from the jury’s use of unanimous verdicts and consensus driven, deliberative decision making. These approaches are likely to fail when confronted with controversial or contentious legislation and policy options, leading either to what Alexis de Tocqueville called the ‘tyranny of the majority’, or compromise solutions that fall far from their original intended design. Any worthwhile democratic system requires the systemic safety valves which promote both the consensus nature of society, and also create structures and mechanisms which allow for the ongoing radical restructuring of society. I hope to put forward proposals in the near future incorporating these structures.

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One thought on “The Jury as Direct Democracy

  1. Your comments about the Sparf and Hansen decision are in error. U.S. juries have never lost their power to reject the validity of laws decided by the political institutions of the state.

    From Jury Nullification: Empowering the Jury As the Fourth Branch of Government by former Washington State Supreme Court Justice William Goodloe:
    “The effect of Sparf has been to give a federal trial judge control over what a jury hears about the law inside the courtroom in federal cases. It does not diminish the actual power of the jury to nullify in federal cases nor does it affect state trials.”

    and

    “Jury nullification remains the law of the land in every American jurisdiction. The ruling of Chief Justice Vaughan in Bushell’s Case that the jury can not be punished for its verdict, stands today in every jurisdiction, state and federal. This, coupled with the rule that verdicts of acquittal are final, is the substance of the power of jury nullificaiton.”

    In fact, Sparf and Hansen allowed judges to neglect to inform jurors of their right to nullify, but it did not remove either their authority or their power to do so. Jurors are not required to check their consciences as the courthouse door. They can not be punished for their verdicts.

    The Fully Inform Jury Association works to educate people regarding their full powers as jurors, including their ability to rely on personal conscience to judge the merit of the law and its application, and to nullify bad law when necessary for justice. For more information on the important function of juries and the rights and responsibilities of jurors in delivering justice, please visit FIJA.org.

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