I see in the news that the UK is considering abandoning the jury system for all but the darkest of crimes. To someone who’s grown up in the Anglosphere this feels shocking; the idea of trial by one’s peers has been a bedrock principle of English common law since Magna Carta, and of American law since the Founding.
The tricky bit, though, is the word “peers”. What works in highly homogeneous societies, as England and America used to be, doesn’t work well at all in multicultural, multireligious, and multiracial places, such as England and America are becoming.
The great Lee Kuan Yew, who forged an enormously successful Singapore out of a congeries of mutually suspicious and antagonistic ethnic groups, understood this well. I found a quote from him online about this (although I can’t nail down the source, it so neatly paraphrases what he said throughout the years about governing a heterogeneous polity that I’ll post it here):
In a multiracial society, trial by verdict can result in communal prejudices influencing verdicts. I would rather put my future in the hands of a trained judge than in the hands of twelve men who can be swayed by prejudices or rhetoric.
Jury trials may work in homogeneous societies, but not in sharply multiracial ones. You cannot assume that each juror will set aside his race, religion, and language.
The jury system is part of an English tradition that presumes a common culture. That assumption cannot hold in a society like ours.
Singapore, acknowledging this reality, abolished jury trials in 1969. Now England, acknowledging the same reality, may be about to do the same.
Meanwhile, though, it isn’t as if decision by judges alone is any guarantee of justice either. For example, there was a case that came before a jury in Minnesota recently, in which a group of Somalians were accused of organized Medicare fraud. (You may have been hearing about this problem; it’s apparently a very serious problem, and happening on a dismaying scale.) The jury swiftly convicted the accused — and then a young, white, female judge by the name of Sarah West (a former public defender) simply overruled them and threw out the charges.
So: what is to be done? Should judges be able to nullify juries? Do jury trials even make sense any longer in Western “nations” that are rapidly decaying into racial and cultural battlegrounds? The Sarah West debacle shows that the even the factional lines themselves are blurred by ideological loyalties as much as race or religion, but the basic fact of disintegration and collapse of cohesion is indisputable, and at this point the problem is acute.
I don’t see any answer to this, or to the more general problem of which it is just one aspect, that preserves the status quo; something has to give. To keep the “form”, the system we were so long accustomed to, we would need to restore the “matter”, namely the homogeneity of culture and allegiance that made it possible. That would probably require a great sorting and separation of people, and a centrifugal movement toward far greater localism in government.
If not that, then Singapore: a strongly authoritarian government, as deeply fractured societies always require.
Or, I suppose, we can just muddle along, doing nothing much at all but distracting ourselves with shiny things, as we cling to outdated forms and everything just goes slowly and steadily to hell. I guess we’ll see.
5 Comments
My experience as a juror greatly increased my determination never to fall under suspicion and wind up in court. The jury was racially homogenous and all the jurors wanted to do the right thing, but they did not all understand the question they had been asked to decide.
I’d say the jury system worked reasonably well, so long as the jurors (1) were afraid that they might personally suffer if the defendant were guilty and freed, (2) might themselves be an innocent defendant being tried in the box. Basically a farmer whose horse might be stolen, and who might be accused of steeling a horse.
Jury duty has become rather onerous down here in Texas, with people like me sometimes summoned twice a year–invariably once. I think this may be because the ratio of eligible jurors to criminal trials is skewed by a large population of illegal aliens and other factors. I know the demography of jury pools looks nothing like the melange I see in the grocery store (or in the census).
Jury pools skew elderly and white, but do include a fair sample from the working class. This deserves respect because civic duty costs these people money that many cannot spare. They are either sacrificing one of their few vacation/personal days, or they are sacrificing at least a day, and possibly days, of wages. A minimum-wage worker who responds to a jury summons has a more honorable sense of civic duty than I do.
I’m not sure it’s as big an issue as you make it, Malcolm. Most cases are plea-bargained resulting in at least some sanction; when a defendant actually goes to trial he or she is generally convicted; and the number of times a judge reverses a verdict is fairly rationed. The system is undoubtedly creaky and occasionally unjust, but does appear to basically work which is about the most you can expect.
All the best to you and your family this Thanksgiving.
My own experience with jury duty (I’ve only sat on a jury once) was was for a case being tried in Brooklyn. It was not encouraging.
I was chosen as an alternate, which means if nobody’s dropped out by the time deliberations begin, you’re dismissed. Which I was.
The defendant, a middle-aged black man, was accused of discharging a firearm through his door to threaten someone standing outside. He’d been assigned an aging public defender, a paunchy disheveled man who looked hung over and utterly exhausted. The defense was very poorly argued; there were technical questions about the gun itself, and the state it was found in, that raised serious doubts in my mind about the narrative the prosecution was presenting, but these questions were never asked. (Indeed, it seemed that nobody in the room knew the first thing about firearms.)
The jury was a racially and socially mixed group, some of whom clearly hadn’t the mental capacity to follow the proceedings with any understanding. (Some even nodded off in their seats every day.) When we were sent to the jury room for breaks, we were instructed not to discuss anything to do with the case, so I was unbale to speak about any of the questions I had, or the inconsistencies I’d noticed.
When it came time for the jury to deliberate, I was sent home. I’d begun to have serious doubts about the charges the defendant faced, but I never had a chance to say anything about any of it.
The defendant was convicted. I saw the judge in the courthouse some time later, and mentioned my misgivings about the case, and he shrugged. “That’s the way it goes,” he said. “Nothing’s perfect.”
He was certainly right about that.
As for plea-bargaining, I read a book about ten years ago called Overcriminalization: The Limits of the Criminal Law that described in chilling detail the way that prosecutors overcharge defendants — piling on multiple overlapping charges for a single criminal act — in order to bargain away some of the charges in order to reach a plea agreement on the remaining ones, in order to avoid going to trial. The vast majority of the accused never have their case heard in open court at all, which makes rather a mockery of the whole idea that most normal people have of how the justice system works.
(That said, of course, most normal people don’t go around getting themselves into situations that get them arrested and charged in the first place.)
Mr. Pollack, hopefully I can express my gratitude, and a good measure of warm regards to you Sir, for all the years taking in your wonderful writings, so much insight, so many perspectives, all the wisdom and practical thinking, (that of which I hold as one of the most valuable of things), in short want you to know how much I appreciate you in this light given, thank you. God bless you and your loved ones please, this great Christmas upon us.
Keep up the wonderful words and thinking.
Kind regards, Doug
Doug,
Thank you so very much for your kind words. You made my day!