Democratizing the Jury
Air Date: February 24, 2020
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. My guest today, Wesleyan University professor of government Sonali Chakravarti considers questions of emotions, the law and democratic institutions. In the context of the present divisiveness these questions she studies are most salient: What is the purpose of the expression of anger in public life? How do we listen to rage? Author of the new University of Chicago volume “Radical Enfranchisement in the Jury Room and Public Life” Chakravarti offers what she calls a full-throated defense of juries as a democratic institution, writing that juries provide an important site for democratic action by citizens and that there use should be revived. She adds “the jury could be a forward-looking institution that nurtures the best democratic instincts of citizens but this requires a change in civic education, regarding the skills that should be cultivated in jurors before and through the process of a trial.” Welcome professor. Thanks for being here.
CHAKRAVARTI: Thanks so much for having me.
HEFFNER: I was struck by that introduction, a model of civic education and also accountability of your fellow peer, your neighbor.
CHAKRAVARTI: I am very interested in how ordinary people engage with political institutions and juries are the place where ordinary people have the most power. They actually make the final decision about whether someone should be punished or not. I called my book “Radical Enfranchisement” because when we think of enfranchisement we usually think of voting and kind of extending the vote to women, to black people. But we also should think about how enfranchisement means being able to serve on a jury, which means that the state trusts you to make this most important decision about the fate a of a peer or a neighbor. And when we think about it, the fact that the state trusts us to do that means that we have the cognitive capacities, the capacities of empathy, the capacities of understanding the law, that we’re not called upon to use in any other, in many other moments.
And so I think the jury service is the most demanding thing we do as citizens. But I think it is also one of the most satisfying things that we do. Studies have shown that people who serve on juries leave with a deeper appreciation of the criminal justice system. They know it’s flaws, you know, and, and right now a lot of people are talking about the need for a major reform of the criminal justice process. And I agree with that. But people who serve on juries come out saying like, there are a lot that’s, there’s a lot that’s right about the trial format. And they are ennobled by the power that they have as jurors.
HEFFNER: And often I don’t think it’s highlighted enough, Sonali that to say a society is free. Really I think demands that it has this process by judging people’s guilt and innocence, a jury of your peers, not only like you say, traditional enfranchisement, but to be a free society I think the jury system is something we take for granted, but we ought not to.
CHAKRAVARTI: Yeah, exactly. And because the jury is the only place where you have people who are not repeat players in the process of punishment, right? Otherwise you have lawyers, judges, prosecutors, police,
CHAKRAVARTI: Lobbyists. Right? And so to use your language of a free society, right? We need, there needs to be some check on that system such that it’s not putting forward goals that are that are not democratic or trying to use a state for abusive purposes, right, we need some check on are the people who have power within the justice system in, within the political system. And the you know, the founders brought over the idea of the jury from England, from the common law tradition because they saw that that is the one way to ensure that that doesn’t happen, that it’s, it’s the best check on corruption.
It’s the best check on abuse of power. I once presented a paper on juries in China and many of the Chinese scholars that were there were saying like, we’re never going to have a full-scale jury system. You know the, the, the Chinese Communist Party’s never going to allow that. But a few people are saying like, we’re, we’re dealing with corruption at a really high level and you can’t just put, you know, you can’t just expect the party to police itself. We need ordinary people in there to decide whether this was corruption and whether it should be punished. And so it’s the sense that like the system only works if we, if you have some body of people that don’t have other interests, keeping their jobs, keeping a salary, moving forward in their careers who are making these very important decisions about punishment.
HEFFNER: To what do you attribute the longevity, the endurance of this, its resilience. Now we’re going to talk about the problems which you highlight in the book, but two, what do you attribute the fact that this system has endured?
CHAKRAVARTI: I mean it’s in the constitution. It’s in the sixth amendment. You know, you can, we can’t get rid of it, you know, and I always like to think that we would never be able to put in a jury system now if we didn’t already have it. Like there’d be so many things forces in place that would, it would be like what you’re giving 12 citizens you know, this kind of power. It would never; it would never pass, but we, it I think it’s endured because of its constitutional basis. And because you know, everyone agrees that it is the kind of heart of the justice system that even though very few cases go to trial. And you were kind of alluding to that just now, thinking about what the jury would do really structures so much of how we make laws, what lawyers tell their clients when they say, should you take a plea bargain or should you go to jury? Everyone was always saying like, we have to think about what would happen if it went to jury. Would a jury believe this, right? And when we make a law, would a jury want to find someone guilty of this crime? So the imagination of how the jury decides really structures is so much of our legal and political life.
HEFFNER: But there hasn’t been an overhaul of the jury system at most of those levels: Municipal, state, federal. What we had early on is largely what we have now. I mean, go back to the Scopes Monkey Trial, all the way to the present. Not much has changed, right?
CHAKRAVARTI: Right. Yeah, that is true.
HEFFNER: You are suggesting that we need to be more civically attentive to our peers. You say we need to cultivate civic education in order to have a more effective modern jury system. What does that look like?
CHAKRAVARTI: Yeah, no thanks for that, for that question. I you know, I think there was a time in the past where everyone remembered studying about juries in high school and you know, I teach at Wesleyan University and I asked my students like, have you studied about the jury? And they say maybe in like middle school, you know, but they really haven’t had a, you know, a robust civic education in high school. And I think actually the high school is a good place to start it. But I’m, you know, when in the book I talk about there all these different skills that we need to develop before we serve as jurors and then, and use them and to continue to develop them through the trial: skills of recognizing our own biases, understanding what it means to debate and deliberate with other people, understanding what it means to interpret statistical evidence that all of these are skills that you gain through it, through adulthood. And, I think learning about the jury at, you know, after college when you’re much more likely to be called as a juror is something that we really need. And I think we can get it in a couple of different ways. I think that kind of after Trump’s election and there’s been a renewed interest in the legal and political system through social movements, through protests and I think education about jury service can be worked into those things. I think political parties should pick it up. I think candidates should talk about it. I think movements like Black Lives Matter should talk about why it’s important to serve on a jury, even if the movement is about changing the structure of criminal justice.
Serving as a juror can be one part of the way, one part of the way that you influence who gets punished and who doesn’t. I think you know, I think there should be, you know, I think comedians should they talk about this, you know, I know a lot of people get their news from John Oliver and at the Daily Show, I think shows like that or talk about the jury system. And, and so I think that there should just be this wider education about why we have a jury in the first place, how people are selected for juries and what they should know about being about being a juror.
HEFFNER: It strikes me that 12 Angry Men just look at the title of the film that really probably is the most educational to the American people: 12 men.
HEFFNER: And so that really highlights what you identify as perhaps the most significant flaw still in the jury system today, which is the fact that lawyers can basically decide who they want to prevent from serving on the jury. And as a result they can get 12 angry white men, not women, not men of color. What is the status right now of what is allowable in terms of what lawyers can do to try to finagle their way to get a pool that satisfies what they perceive to be the biases that are going to favor their client, whether it’s the government or a defense attorney.
CHAKRAVARTI: Right. So now if you’re, if you’re, if you’re called for jury duty yeah, and, you’re called to be part of the pool for a case. The first thing that’ll happen is that the judge will ask you questions, will ask you maybe what, what do you do? Who do you live with? Do you have any members of your family in law enforcement? You know, anybody involved in this trial? And then the judge will decide whether you have any preexisting biases that you wouldn’t be able to kind of work through during the trial. And if you don’t, then you’re cleared to continue in the process. And after that process, the lawyers reach aside get a certain number of preemptory strikes which are, are just basically get out of jury cards that they can use on any of the jurors.
They don’t need to give a reason. They just need, you know, the idea was that both sides should have a say in what the pool looks like. And if both sides have an equal number of peremptory strikes, then that’s a way of making sure that the playing field is equal, is balanced,
HEFFNER: It doesn’t quite turn out,
CHAKRAVARTI: Doesn’t quite turn out that way. And the Supreme Court heard this at this case, last term Flowers v. Mississippi where a prosecutor in Mississippi effectively removed almost all of the black jurors from a case where the defendant was black, where 40 percent of the County are black residents. And so it didn’t make sense that you would, that this defendant would have a nearly all-white jury for, you know, a very serious case of, you know, four homicides.
And one of the Supreme Court has recognized that this is a problem. You know, that when lawyers practice discrimination on the basis of race against jurors. And so there is a remedy in which is it’s called a Batson Hearing where the judge, the prosecutor who removed a jurors is asked to say, what were your reasons for removing this juror and are expected to give a race neutral response. You know, it’s, the prosecutor could say you know, I felt that they weren’t, you know, truly listening to the questions or I thought that they were, you know biased because the baseball team they like is you know, is, it rivals with the other with the, you know my clients you know, preferred team.
It can be, they can be strong responses, they may be weak responses, but they just have to be race neutral reasons. And judges are inclined to believe them, inclined to believe that lawyers are doing their job well and that when they give a reason, that’s really the reason that they intended. But what, what we keep seeing is that oftentimes these reasons hide racially motivated reasons that actually prompted the lawyer to remove the juror. And that is what results in juries that don’t reflect the communities that they’re drawn from and oftentimes don’t reflect the communities of the defendant. And I think the, the best response to this is to get rid of peremptory strikes. So only you know, allow the judge to determine whether someone is able to serve as an unbiased and biased juror.
And if a lawyer, you know, says, I kind of put, thinks that someone is biased, they should be able to make that claim. But you don’t get any of these kind of strikes, peremptory strikes. And this is a controversial suggestion because you know, a lot of what I say in the book, defense attorneys are, are open to and feel like I have this but then what I’m saying will help defendants in a lot of ways. But even defense attorneys don’t like this idea of getting rid of peremptory strikes because they feel like they use it to help their client and they, you know, they, they don’t use it in a racially discriminatory fashion, but they want the opportunity to remove jurors from the pool. And I see what they’re saying, but I but my goal is to get juries that look like the communities that drawn from. And the best way to do that is to get rid of peremptory strikes.
HEFFNER: Or if they are not homogeneous, that they represent a diversity of opinion. I mean that there, there are some nobility and value in striving for an intellectually diverse group of men, women,
HEFFNER: Men and women.
CHAKRAVARTI: Yeah. Right. No, I agree with that. And, I think that’s also comes with like with getting a truly random selection of people from the area that jurors are drawn from. And I think there’s kind of two other things we can do as well to get that. One is change the way we select jurors. Right now the pool for jury duty is drawn from DMV lists and voter registration lists. And so if you know someone or maybe you feel like you keep getting called for jury duty, it’s because your name is on both those lists. And but what’s missing from those lists are people who don’t have a driver’s license, who don’t have a permanent address, who might move around a lot. And so I think other states should follow what Massachusetts is doing, which is have residency lists that are updated yearly.
Who actually lives in this in this jurisdiction, and the jury pool should be drawn from that list. And so we’d get the intellectual diversity that you’re, that you’re talking about. We would capture people who aren’t captured right now. And then the other thing I think we should do is compensate people more fairly for their service. You know ancient Athens had, used jurors, and one of the reasons why it worked in, in Athens was day two, they paid people a daily wage that was comparable to what a working man would get for the day. Right now it, if you’re called for jury duty, some states offer, you know, $40 dollars a day or $60 dollars a day to people who are losing out on salary by coming to coming to a jury duty.
HEFFNER: And some, some employers would not…
CHAKRAVARTI: And some, yeah. So some employers don’t you know, don’t dock your pay,
CHAKRAVARTI: If you’re a, usually if you if you’re a salaried employee, you get your weekly pay,
CHAKRAVARTI: Or monthly pay. And some employers understand and I think could be even more encouraging about, you know, you should serve on a jury. We will not penalize you in any way for that. But hourly workers, people have their own businesses, right, other people who don’t have that kind of salary structure really do lose money that they need to live if they, if they are asked to serve on a jury. So I think the compensation for jury duty should be more comparable to what, you know, eight hours at a minimum wage job would be.
HEFFNER: Have you determined that the problems are equally severe when it comes to discrimination in jury selection in both who gets called and who gets selected?
CHAKRAVARTI: I think, yeah, I think they’re consistent across the board that who gets called and who gets elected are our flawed processes. And, and that also the people who are really concerned about their economic wellbeing can’t serve on a jury. And so I think those are some that’s, those are some recommendations for changing juries to make them more, more welcoming. I mean I also think there needs to be a change on the motivation side. You know, I think trying to get out of jury duty is a like kind of longstanding American tradition as well. And you know, it always puzzles me because you feel like we as a, as a kind of viewing public love television shows about crimes, listen to podcasts about trials all the time.
We are fascinated by the criminal justice process, but then when people are called for jury duty they think like, I don’t have the time to do it or you know, I don’t want to actually have to decide. And…
HEFFNER: What about fear of reprisal?
CHAKRAVARTI: You know, I think that that is there as well, you know, I’m thinking about the jury for the El Chapo case, you know, recently, so.
HEFFNER: It doesn’t have to be so controversial.
CHAKRAVARTI: Right? But I, I think so. I mean, you don’t hear about intimidation of jurors after cases too frequently. And…
HEFFNER: More during the case.
CHAKRAVARTI: More during the case. Yeah. So I think there is that but more in what I’ve found in an accounts of people who’ve served on juries and different research on this topic, more people, the idea is not having the time to do it and then also actually feeling like I don’t want to have to be put on the spot to decide that it’s going to be impossible for me to say guilty because I’m going to feel bad. And I don’t want to be the one who says not guilty because then what happens if the if the person commits another crime. And so I, and I think this is actually you know, something that we need to grapple with. Like why are we so afraid to judge in these contexts?
HEFFNER: What is the percent of the American public that ultimately will serve on a jury?
CHAKRAVARTI: I don’t know that number. I kind of like think over the course of your lifetime, you know,
HEFFNER: Right or, or not even, you know, because I’m sure there are many people over the course of a lifetime who are excused every, every time they’re called. So I just wonder what percent we’re talking about when we’re talking about the number of citizens who actually do serve on a jury.
HEFFNER: But in the absence of that information, I, I find your subject in this question of radical enfranchisement to be parallel to other ways that the American people are not sufficiently involved in day-to-day governance and have really delegated an outsize influence to lobbyists and are not generally represented in the way that the Athenians hoped. Part of that is scale. But part of that might be laziness. And that is what you were so gently insinuating earlier. And maybe not laziness, pick a word, but I’m getting at this idea of participatory democracy because serving on a jury is the most intimate form of that. And some municipal governments are beginning to open their doors to lay-people to help determine when it comes to allocating expenses for your community: should this go to this police department, should this go to the board of education, and those decisions not being ones made only in city council or maybe not even in city council, but through person-to-person negotiation in groups through participatory democracy. So how is the jury as that model that you talk about something that can be emulated?
CHAKRAVARTI: When I teach about the jury, I teach it alongside teaching about participatory budgeting, using citizen panels to talk about healthcare reform. I think these are some of the things that you are alluding to. I think the jury has a lot to offer to these other forums for participation. I think the most important is that the jury system allows significant time for education on the issues either through the judge and through the trial itself for deliberation without outsiders present. And so it really has a pedagogical mission either within the structure of the trial. And I think when citizens are involved with budgeting or healthcare, they also need that time to learn about the issues, to think, to talk. And I think they need final decision-making power.
And this is often where it falls apart I think in other forums that, that’s a, you know, city governments, let’s say that give citizens you know, a voice in the budget but then might not actually let them decide, ends up leaving a lot of citizens feeling frustrated that like, I put in all of this time and I did the, you know, I did what I was asked to do, but then the city didn’t take my recommendation and our recommendation or you know, that we achieved by consensus. And I think what’s so powerful at the jury system is how seriously people take their task. When they’re given the time, they’re given all the information they need and they know that what they are going to come up with will have an impact on somebody’s life and cannot just be overwritten by, you know, by the judge or by another person who says they’re an expert. So I think that that you know, it’s that final decision making power that really the trust that we have that we have in people. And people respond to it by taking it more seriously.
HEFFNER: And also the transparency of the process in so far as you may not be able to hear what’s going on in the room in which folks are deliberating, but that, you know, here is the cast of characters. Here are the people representing this decision and also the technical parameters of, you know, here are the hours during which we’re deliberating. They may bring some pizzas for us, but otherwise there are no interruptions. And you know, of course you’re given strict guidelines about making your deliberation the focal point and not letting any outside factors distract from that. You know, one thing that, that I’ve thought a lot about is, in the same breath of transparency and participatory democracy is, you know, just giving the American people from whatever state and city they come from a, when they pay their taxes every year to understand the allocation of the tax when you submit your tax, and you know, for one thing you could get a thank you from your state or your city or your federal government. But beyond that actually having a digestible allocation of, you know, here’s what you paid and here’s what it went towards. And this is just precisely the example of the lack of accountability and transparency in the American system right now. Because a whole lot of us will pay taxes each year and not know precisely what they’re paying for it.
CHAKRAVARTI: That’s an interesting point. And you know, and I think you’re, you’re picking up on this idea that like people will step up when they feel like they know what it’s going to, or the, they, they feel see some connection between what they’re putting in and what is happening at the governance level even if it doesn’t have to, you know, benefit them. I don’t think people are as self-interested as sometimes we assume they are.
HEFFNER: Well, that’s exactly when I said this to someone recently, they said, well, if we did that, people would just holler at, you know, they would see what their money’s going towards and not like it. And, but, you know, they are already dissatisfied; surveys of Congress or show dismal rating in general over many decades. So it’s, I think it goes back to cultivating an information sector and cultivating an informed electorate, which, which we haven’t really done.
CHAKRAVARTI: I guess I’m a little bit skeptical in some ways that we need the kind of money breakdown, is that the thing that will give people a sense of you know, accountability. I, you know, in a way, we’re living in this age of data, right? That we have, you can get data on so many different things, but what we still don’t know or what we can do a civic education we need is how to prioritize different things that, you know, at different, different levels of government and what tradeoffs need to be made, and how we communicate that to our representatives, how they communicate that directly. And so, and so I feel like I’d rather have discussions around that and then the financing part, which should follow from it.
HEFFNER: If only because Sonali it would reveal the disconnect in at least when it comes to federal spending, military versus everything else…
27:56HEFFNER: If we’re going to have jury systems, if we’re going to have representative government, we need to be informed at the ground level. We need those juries to be informed, so if anything, we’re out of time now, but it would highlight the deficit and abnormality right now in the American system where the disproportionality of what we spend on military versus every other human service, but especially education. And maybe in turn we would have very educated juries if in fact at tax season we would see that and maybe not tax season, but we see how our money’s getting spent in real time, which we don’t. Thanks so much for your time today.
CHAKRAVARTI: Thank you so much.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access over 1,500 other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.