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Becoming Decarceral Jurors

Serving in the jury system, and preserving it, should be a goal for anyone committed to ending the scope and scale of mass incarceration.

jurors

Tucked between clothing catalogs and cheap Wi-Fi offers, you spot a postcard from the Department of Jury Services. Do you groan? Are you curious? Of all the emotions connected to jury duty, frustration and resignation rank high on the list. Many people feel that they cannot financially afford to miss work for the number of days they would be required to serve; others have childcare or elder-care obligations that cannot be easily handed off to another person; still others are simply too busy with work or school to give the time to this civic duty.

Perhaps you fit none of these profiles. You might, in fact, be intrigued about what it would feel like to serve as a juror. You, instead, have a different concern, as someone who is actively committed to the goal of ending the scope and scale of incarceration in the United States. You wonder: Are you even eligible to be selected? Should you lie about your political views of the legal system to better your chances?

As a scholar of juries, I want to offer some possible ways to think about the possibilities of jury service for the decarceral juror.


To start, the historical justification for having juries is very much in line with decarceral goals: it is a mechanism within the common law tradition for citizens to resist over-punishment or unjust punishment by the state.

Jurors in the colonial period were well-versed in their power to nullify—that is, to find the defendant not guilty apart from the evidence—if they felt that the law itself was unjust, if the prosecution was too corrupt to mount a legitimate case, or if they wished to show mercy to the defendant. The 1735 trial of John Paul Zenger is the most famous jury case from the colonial period. In the case, the jury declined to convict Zenger, the publisher of a newspaper, for printing libel about the king. This was despite the fact that the law clearly prohibited any defamatory reporting about the king, even if it were true. The case highlights the independence of the jury and its potency to undermine the established legal order. In following decades, British colonial authorities—fearing the legal autonomy of local juries in the context of restive colonies—took away the right to a jury trial with the 1765 Stamp Act. This lack of opportunities for jury trials in the colonies was an important grievance enumerated in the Declaration of Independence, and the right to a trial by jury in criminal cases would later be codified in the Sixth Amendment of the Constitution.

Today the power of a jury to nullify—to acquit a defendant, irrespective of guilt, without being censored or overruled by the judge—is not one that most jurors will know about, nor will the court condone discussion of it during voir dire or any place close to the courthouse. For example, in 2017 a Michigan man was convicted for distributing near the courthouse pamphlets about nullification that he had received from the Fully Informed Jury Association (FIJA), an organization committed to educating people about their rights as jurors. Not every state actively downplays nullification. New Hampshire, for example, includes an instruction to jurors that they “are the deciders of law as well as fact,” a shorthand locution that serves as permission for jurors to consider the aptness of the law itself and not just the burden of proof.

The power of a jury to acquit is arguably the single most powerful tool that citizens have for stopping someone from going to prison. So should the decarceral juror approach the process with the intent to acquit, regardless of the circumstances? Should they be an activist for nullification in all cases?

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This image of the juror as a stealth nullifier is powerful because it uses a secret power of the jury to undermine the machine of arrest, prosecution, and conviction that has led to the high rate of incarceration. It also allows the decarceral juror to see herself as the hero, akin to Henry Fonda in Twelve Angry Men, who saves the defendant, and maybe the court at large, from a tragic outcome.

Law professor Paul Butler encourages thinking about jury nullification as a type of civil disobedience, using the term “MLK jurors” to refer to those jurors who come into the courtroom knowledgeable about the full extent of their power to acquit and prepared to act. In a Yale Law Journal article from 1995, during a period of intensification of incarceration for drug crimes, Butler argued that Black jurors should nullify any nonviolent drug crime that did not involve children. Those defendants were better off staying in their communities, he argued, trying to improve their own lives as well as those of their family members; juries could enact this outcome through nullification. However, by carving out violent crimes and drug crimes involving children as exceptions to his call for acquittals through nullification, Butler indicates that jurors should still think about the consequences and potential risks of not limiting the actions of defendants. Likely harm to children in the future may not offset the desire to show mercy to a defendant caught up in a racially discriminatory legal system. A conviction may sometimes be necessary for the safety of others in the community but, fundamentally, Butler sees the jury as one place of resistance to slow down the levers of punishment.

I have previously written about an alternative framework: the radically enfranchised juror, who is well-versed in the meaning of jury nullification, its pitfalls and possibilities, but who also appreciates the role of the juror in the adversarial process and begins the process open to both verdicts. Such an orientation highlights the alchemy of the trial process, and the juror remains open throughout to the arguments of the prosecution and defense, the presentation of evidence, instructions by the judge, and joint deliberation with other jurors. When the goal is to be a radially enfranchised juror, rather than an MLK juror, the possibility of nullification is still on the table, but it exists within a broader understanding of why it is valuable for laypeople to participate in the legal system and the variety of ways to resist unjust laws and practices.

Still, the question remains: Why should the decarceral juror trust the adversarial system and its lofty ideals of protections for the defendant when it is the same system that is responsible for the incarceration we see today? This is perhaps the most difficult question that the decarceral juror must ponder, yet it will shape the way any potential juror answers questions during the jury selection process. While it is true that the status quo legal system is responsible for high rates of imprisonment, very few of those came though the jury system. The vast majority of convictions come through plea bargains and bench trials. Only a tiny fraction—less than 3 percent of cases in federal court and 6 percent in state court—are heard before a jury. The jury trial allows for the defendant to get a hearing before fellow citizens who are not repeat players in the legal system. Jurors do not have the same incentive to appear punitive or to maintain consistency across cases; they are able to take each case individually and think about what the just outcome would be, even considering when the just outcome might diverge from the expected legal outcome. This way of considering whether the government has proven its case—and what should be done next—is, to my mind, the most democratic way of resolving a dispute where parties disagree on the preferred course of action.

This does not mean accepting the premise that the law, as it stands, is fair or regularly produces outcomes one could define as just. It is, rather, a belief that, for a democratic society to flourish, there must be ways for the people—through their representatives and jury service—to express which norms should be codified, such that people can live without fear for their safety and are able to actualize the freedoms of religion, association, press, and speech, among others, to which they are entitled. Such freedoms require some types of enforceable authority to protect them and, rather than place this authority in an all-powerful leader, a democracy places it in laws.

Affirming the function of law as a way to provide scaffolding for nonviolent coexistence in pluralistic societies does not mean equating the law with an expression of morality or the transcendent natural law tradition. The law is both much smaller (ineffective as a way to address the most vexing issues of inequality) and larger (a means of existential coordination) than those interpretations.


Even if we arrive at a decarceral future in which the prison system has been dramatically reduced, we would do well to hold onto the ideals of the jury system, with its insistence that laypeople are able to do the hard work of deciding the outcome of an alleged violation of the law. Even in an ideal society, there would be conflicts over the breaking of laws and the need for fair ways of resolving it. This would be especially true in instances when the accused party did not want to participate or cooperate, a prerequisite for many restorative and transformative justice practices.

Supporting this ideal of the jury trial, now and into a decarceral future, means taking the responsibilities of being a juror seriously, including that of impartiality, a lack of prejudice against the parties, and an openness to the evidence presented. It means seeing one’s role as a juror as distinct from the role of an activist or critic. To be a juror is to be given the opportunity to decide, with others, someone else’s fate and to abide by the instructions of the court, including those that prohibit posting on social media about the trial, doing your own research about the case, and communicating directly with the parties. I would argue that the decarceral juror should follow these instructions not as a way of endorsing the legal system as it is, but out of recognition that the structure of the jury trial is worth preserving.

At its best, the law represents the codification of a set of rules for a society that allows all people to live with dignity and freedom. To refuse to participate in a jury trial because of the great harms done by the legal system would be the worst type of virtue signaling because it would throw away the chance to block an unfair punishment. Moreover, taking oneself out of qualification for jury service by denouncing the law altogether would also be throwing away an endorsement of the jury system as a necessary institution where citizens can meaningfully express dissatisfaction with particular laws.

The summons to jury duty can be more than an inconvenient civic chore. Especially for the decarceral juror, it is a chance to reflect on what kind of laws we want to see and who should be involved in ensuring that these laws are applied fairly.

Image: Douglas Muth/Flickr/Inquest