We need more compulsory public service.
I don’t mean we should re-institute the military draft. And I don’t mean we need to fashion a mandatory domestic Peace Corps.
I mean we should dramatically expand the one service obligation we already share—jury duty.
Criminal justice is run entirely by—and, so, pretty much entirely for—a population of legal-system careerists: judges, lawyers, clerks, cops. I’ve spent my long adult life among these people. They see justice as something they do for the people, never as something they do with the people.
For them, it’s an insider’s game.
And when they say they are doing justice, they really mean they are rationing justice—handing out only as much of it as they think you can afford. They believe they have the secret operating manual—one you wouldn’t understand.
They’ve made a mess of it. In the end, they’ve done their brand of justice to the people.
The COVID-19 pandemic has temporarily given these insiders the courthouse environment that they find most congenial. Health concerns have emptied out most of the people, and put another layer of plexi-glass between the judges and lawyers and those few regular people who remain.
The world gets to see the insiders in action only when some insider decides to turn on the video. Even then, the fraction of the action that makes it to the screen is the part that the insiders choose to display on camera.
But when the pandemic lifts, there will be a moment for the people to come back in—whether virtually or in person—and start to take the system back.
We will have to seize that opportunity, because the insiders won’t give up wider access as a gift.
Their daily routines embarrass even themselves. They function as a priesthood, but the priests have lost their faith, even though they’ve kept their jobs. They need the privacy.
To recognize where things stand in criminal justice you need the data. The data on mass incarceration and particularly on its racial biases are damning. The data on the disappearance of the jury trial—98 per cent of criminal cases are concluded without one—are dramatic.
But these data, focused on outputs, cast an oblique light on processes and they can create the wrong impression.
The general public tends to think of the decline of the jury trial as something that just happened, like the extinction of the dinosaurs. The insiders’ characteristic responses to criticisms of mass incarceration—“The algorithm made us do it”, or the “Guidelines demanded it”—also obscure the fact that human agency played a role.
These are mass phenomena in the sense that they entail big numbers and massive implications, but they did not happen en masse. They happened one defendant, one small act of inhumanity and coercion, at a time.
The difference between a jury’s determination and a system-generated one is that because a jury only exists for one case it has no alternative to giving it individual attention. If the probabilities are 80 percent, the jury will still have to decide whether this case is one of the 80 or one of the 20.
Tell prosecutors or judges that the probability is 90 or 80 (or 51) percent, and they know what to do 100 percent of the time.
A jury has no past to be consistent with, and it has no future that today’s decision might affect. No end-of-the-month or quarterly spreadsheet will lower a juror’s score, or irritate his or her bosses.
Jury trials have disappeared because courthouse insiders relentlessly deploy an elaborate apparatus of carrots and sticks to make sure that no defendant in his or her right mind chooses a jury trial.
Have you ever asked yourself what the courthouse regulars do all day if they don’t do trials? The answer is they occupy themselves with operating the guilty plea leverage machinery. The “real” job of an urban criminal court judge is to move the docket.
The tragic story of Kalief Browder provides one example. In her New Yorker article, Jennifer Gonnerman recounted a long succession of routine court appearances, all devoted exclusively to convincing Browder to give up his right to a jury trial.
I think I can promise you that that after every one of these calendar calls and status hearings the prosecutors, judge, (and, yes defenders) who happened to witness them were shaking their heads at Browder’s mysterious obdurate refusal to take their market-price deals.
The ‘Trial Tax’
A key weapon in the insider’s toolbox is the “trial tax.” The threats ratchet up the punishment (and/or the promises ratchet up the leniency) as the case moves along. Plead guilty and you get six months (or three, or probation). Go to trial and lose and you will get five years (or ten, or 15).
The authorized courthouse explanation of this is that a sentencing discount for giving up the right to a jury trial is a reward for “acceptance of responsibility”: a formulation that that tries to put lipstick on a pig of a process. Everyone knows that “acceptance of responsibility” (or its opposite) forces people with triable cases—at least some of them innocent—to accept the insiders’ probability judgment instead of seeking the jurors’ diagnostic determination.
Donning the “acceptance of responsibility” fig leaf demeans everyone involved. It is a pretense. They all know that when defendants give up juries what they are actually accepting are the realities that the insiders have constructed for them.
To allow years of incarceration to turn on a justice jobholder’s subjective—and unreviewable—opinions about remorse opens the door for the retail acts of bias that cumulate in a stark statistical portrait of a racist system.
Some people feign remorse; some remorseful people still deserve a trial. As Susan Bandes has shown, reliance on remorse as a sentencing criteria is irreducibly problematic.
So, ban the trial tax, and let the community, through its jury members, decide the cases. Along the way to deciding the cases, jurors will witness and evaluate the law enforcement and prosecutorial practices on display. They will weigh defender performance. They will act on what they see, and they will take what they have witnessed home and share it.
There are statutory fixes that can help dismantle the trial tax: the elimination of mandatory minimum sentences is one obvious place to start.
But we could also make it an act of professional misconduct for a lawyer or judge to argue for or impose an enhanced sentence as the price for a trial.
Prosecutors should learn to fashion sentencing recommendations that optimize public safety in light of the particular crime, the defendant, and the options available. That recommendation should be the same whether there is a trial or not.
Judges should be forbidden to enhance a sentence because the defendant has failed to display remorse by taking a guilty plea.
If we still want people to express remorse, ask them to show it after the jury trial, not before it. Judges will still get it wrong, but at least they won’t be getting it wrong because of their own conflicting interest in moving the list.
No More Winks or Nods
Of course I realize that if these suggestions are adopted the first response in the courthouse will be a frantic effort to generate a new language of winks and nods. Under pressure to clear the dockets, there will be powerful “practical drift” toward covert strategies for keeping the jurors out of the jury boxes.
Well, as Lenny Bruce once observed, “In the halls of justice, the justice is in the halls.”
While the jurors are out of the jury boxes they can vindicate Milton’s hope that “They also serve who only stand and wait.”
Currently, prospective jurors who are summoned to court are penned in jury lounges and set to reading magazines. We should send them out to watch the arraignment lists, calendar calls and sentencing hearings where the rubber actually hits the road in contemporary criminal justice.
Give them buzzers to answer if we need them for a voir dire. (If The Cheesecake Factory can do it, the courts can too.)
Have our new draft of jurors watch the kind of proceedings where Kalief Browder’s life was dismantled.
Get some community eyes on the hallways and status hearings. Lift the veil.
The jurors will see many things that will strike them as curious. They will see other things that they will find unbelievable.
One advantage of summoning jurors to these duties (rather than waiting for citizens to drift in) is that if we make these acts part of jury service we can regularize some processes for having the public report on, react to, and evaluate what they witness.
We can devise a way to allow them to ask questions, and we can ensure that they get a response.
We could even mobilize the jurors as restorative justice advisors: spokespersons for the community’s sense of what an offense required as a response.
The technological workarounds driven by COVID-19 may open up new ways not simply to provide safer judges but also to mobilize bigger audiences and broader community participation.
Jurors should continue to receive compensation for participation (or pay from employers) but it may well be possible to permit remote jury service in many of the jurors’ new, non-trial roles. People barred from traditional participation by health or childcare challenges might be included.
Courts require protection from influence and retaliation. But they are not entitled to priestly secrecy or majestic impunity. As one of the maxims of the late Dave Niblack, former assistant dean of then-Antioch Law School (now the University of the District of Columbia Law School) held, “The quality of justice dispensed is inversely proportional to the distance between the judge’s ass and the floor.”
A little judicial humility is the price of public trust in the law.
Courts should do public acts in public. When they do them someone should be able to explain them to the public, and the public should be able to request explanations. It’s not enough that the insiders have found a way to explain their choices satisfactory to each other.
In Thomas Jefferson’s first inaugural address he said that, “The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.”
More jurors, more duties for the jurors—even when those duties are performed remotely—are the way to go. If it means turning on the cameras, turn them on. And don’t let the insiders turn them off.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.