How We Can Reclaim our Democracy

They will probably not show this photo in court.

It is a national disgrace that the Land of the Free locks up more of its citizens than any other country in the world.

Now, it’s not like America has any shortage of national disgraces. But most of them are perpetrated by the ruling class on its own. In this one, regular citizens are active accomplices.

Jury duty for criminal trials can be democracy at its best or at its worst. It’s the business end of government, when its previous efforts to restrain citizens’ behavior have failed and the state is trying to either clean up the mess or appease some collective hunger for vengeance by meting out a punishment. It’s the one setting where your vote really does matter, and matters very keenly to the poor soul who stands accused.

The structure of jury duty is, let’s be honest, an outrage. You get a letter from the government informing you your 13th Amendment rights have been suspended and you are to be enslaved for the duration of a trial, so call every day after 4:30 PM to see if the authorities deign to accept your surrender the next morning. Or words to that effect. The assembly process and juror selection make woeful use of everyone’s time and send 95% of the people home after half a day. If only there were a way to exchange information with people without them needing to be physically present…

It is therefore understandable that evading jury duty is something of a national sport. My particular recommendation: dress nicely, answer all their questions intelligently, and be holding a copy of Mein Kampf. But that does have the unfortunate effect of filtering a pool of average citizens down to the very dullest whose time is in low demand or who lack the inventiveness to be excused. Lawyer friends report they always get bounced because they know too much; apparently a law degree disqualifies one from applying the law.

Well no wonder the prisons are bulging. The main checks and balances on the judicial branch are jurors who decide when to allow the government to lock someone up. When jurors are docile, thick, or just uninformed, prosecutors prosper and wardens feast.

Jurors need to come in clear on their own principles of justice. And pay attention, especially to what doesn’t get said and what questions are never asked.

We all gotta step it up.

To help, I can offer you a couple points of view — two models of reality to take with you to the courthouse. Which, if either of them, matches the reality you’re in you’ll need to decide for yourself.

Consider first the judge. Perhaps he’s a morally upstanding citizen, well versed in many philosophies of justice, scrupulously fair-minded, and determined with your help to reach an outcome that’s true to the facts, consistent with the law, and the right thing to do. And perhaps those three things will align.

On the other hand, perhaps he’s a creature of the judicial-industrial complex who has swum in it for 20 years and has no external moral reference point. A politician who must either stand for election himself or be appointed by someone who will and dreads being painted as “soft on crime.”

Which is he really? You’ll probably never know for sure. Perhaps he’s a bit of both. Schoedinger’s judge, as it were.

Look at the prosecutor. Perhaps he’s a champion of the public interest, eager to make sure everyone, including himself, plays by the rules. Or perhaps he’s an ambitious young man keen to build a political career and get thugs off the street, who sees the rules close up and has his own compass about which corners really ought to be cut.

How about the defense attorney? Maybe she believes everyone accused deserves her very best and is a capable, committed defender of her client’s interest. Or perhaps she’s required to take this pro-bono case, is worried where she’s going to find additional billable hours by the end of the month, and quietly fumes that this guy rejected the plea and made her drag his hopeless case to trial.

Finally, look at the jurors. Perhaps they’re there to follow the judge’s instructions and make a decision about the facts of the case and whether those fall within the law or outside it. Or perhaps they’re the checks and balances on the judge and the law itself, the last hope for genuine justice if the ruling class passes unjust laws. Who must bring their own jurisprudence into the court and hold it confidently enough to judge both the facts and the law.

My Own Experiences

I’ve been called for jury duty more than a few times over the years, and I started with the point of view that the system is fundamentally even-handed and I have a simple but important role to play. But I’ve entertained another model, one where the legal machine is actively trying to conscript me as an accomplice in sending lots of people to jail. Troublingly, the more consideration I give it, the better it seems to fit my experiences in the courthouse.

Consider the macro situation leading to a criminal trial. Legislators work in a noticeably dysfunctional political mud wrestling pit and pass edicts on citizens’ behavior. Although citizens overwhelmingly disapprove of the job they’re doing, you’re supposed to quietly obey those edicts. But if the edict fails to bring you in line, the government will follow with an escalation path leading to your arrest and criminal charges against you.

What’s supposed to happen next, according to the 6th Amendment, is a speedy public trial. What actually happens next is an intimidation game. The DA stacks up enough distinct charges around this single event to send you to prison for 400 years, to bully you into pleading guilty and saving his office the hassle, expense and uncertainty of a jury trial. The legislative and executive branches have quietly nullified the 6th Amendment.

If the accused doesn’t cave, the next step is the pre-trial when the judge hears motions to exclude evidence from the trial. This used to happen in front of the jury, so you’d at least know what topics are being kept from you. Now you’re never told. Seems to me this injects reasonable doubt into every case before the trial even begins, so I don’t see how it can legitimately proceed.

But proceed it does, to consider often very dubious charges. For example, I was called for jury duty on the case of a young man charged with “possession with intent to sell” crack cocaine. Consider those words. This “crime” according to the law had no victim, just a willing buyer. Except there was no buyer, because there had been no sale. There was just this guy’s intention to sell. A thought-crime.

If that’s not Orwellian enough, even the thought can never be known. We can’t read minds. So jurors will be asked to consider evidence like the quantity of drugs found, then speculate on the defendants’ thoughts about a hypothetical sale to a notional buyer who theoretically abuses the drugs and something bad possibly happens to someone. How does any of this relate to justice? The judge did not encourage us to ask that question, and the prosecutor seemed to be feeling around for who might so she could get them booted.

Another case: a guy being charged in civil court under California’s “civil commitment” laws for crimes he might commit in the future. It reminded me of a certain movie.

How about this one: four guys, all minorities, charged in federal court under the Sherman Antitrust Act of 1890 (the one Rockefeller’s competitors lobbied for when they couldn’t out-compete him) for “collusion” in a county real estate auction. These defendants — how shall I put it? — were no Rockefellers.

Now, you know how auctions work: you put something on eBay, people bid for it, and if they clear your reserve you sell it to the highest bidder. Bidders might know each other, or they might not. You have no “right” to a particular price; they might bid as much as you hoped, or they might not, but in neither case are you the victim of a crime. Apparently the government thinks its own auctions are special, and bidders should not optimize their own strategies.

How did a county matter end up in federal court? I suspect these guys were there because they were involved in something entirely different, but the feds didn’t think they could make that case and picked some charge from the back-catalog. No one in the courtroom addressed any of these concerns, of course, and we jurors had no opportunity to ask.

The notion of a victimless crime is problematic, even more so a victimless hypothetical event. But I don’t believe these cases were unusual, rather I suspect they’re routine. Am I willing to send someone away for vague hypotheticals? Hell no.

You have more power than they want you to know.

Handing this out near a courthouse may be a felony.

American juries in the past have helped bring an end to laws they deemed odious, such as Prohibition and the Fugitive Slave Act, by quietly acquitting defendants violating them. The principle — and I’d argue the responsibility — of jury nullifcation goes back to the Magna Carta.

But the government is not keen for it to catch on. Defense lawyers are forbidden from suggesting it. Judges won’t tell you about it, and may tell you there’s no such thing, you must not question the law. Officials have been known to arrest people for even spreading information about it outside a courthouse. The ruling class, evidently, does not want to be second-guessed by The People. Which suggests something about their agenda and the power woke juries can wield.

Nixon’s drug war has ravaged America’s families and inner cities for 45 years, and we’re only now prying marijuana out of its grasp. I’ve had enough of this and many other egregious laws. I’m not going to be party to locking people up for victimless or purely theoretical crimes, which account for three-quarters of federal inmates. If you’d like to take back our democracy, you have a lot more power in the jury box than at the ballot box.

Tech guy trapped in the data mines of San Francisco. I write about economics, civic issues, and career ladder lessons, usually from a contrarian angle.