Juries, juries, everywhere (but not inside the courts).
The jury trial has created a distinct, durable, and public role for citizens. Though circumscribed, lay decision making on the jury makes a concrete impact on real lives and incrementally shapes criminal justice more broadly. While no panacea for a political culture grown too comfortable with criminalization and incarceration, the revival and improvement of the traditional legal jury may be our best chance for fostering the civic responsibility and public awareness needed for more humane criminal justice.
Rise of the Jury Outside the Court
The last twenty years have witnessed a flourishing of public deliberative procedures used to supplement formal representative government bodies. Citizens' juries--also known as planning cells--and deliberative polls, two of the most commonly used methods, share structural similarities with the traditional jury. "The idea is to conduct a process similar to a jury trial," write Peter Dienel and Ortwin Renn, "with experts and stakeholders as witnesses and advisors on procedure as 'professional' judges" (p. 122). They are public, in that they seek to involve laypeople who are not already active in formal politics as officials, agency staff members, interest group representatives, or dedicated political party workers. They are also deliberative as opposed to plebiscitary events, signature drives, or opinion surveys, in that they encourage dialogue between participants, seek to foster reflection about existing beliefs, and incorporate expert analysis and political argument into the ongoing discussion. Such forums put "the whole country (or the whole region or the whole state or the whole town) in one room where it can think," writes James Fishkin in When the People Speak (p. 122). While they seek to educate and clarify public opinion, such forums are not partisan or advocacy-oriented. They aim to bring out durable and reflective positions held by participants themselves.
Like the traditional jury, citizens' juries and deliberative polls bear witness against the idea that popular bodies are incapable of thoughtfully deciding difficult public matters. Whether it is health care technology funding priorities, criminal justice policy, municipal zoning, European Union matters, environmental policy, or public utility rate-setting practices, citizens' juries and deliberative polls are being used to handle the "wicked" problems--that is, the complex, difficult, and long-term problems--rather than the simple ones. They step in when the going is tough, when formal governmental mechanisms have failed to serve the public interest in crucial areas for reasons of partisan dissensus, institutional sclerosis, or incumbent nervousness regarding the public reaction to any substantive policy decision.
Citizens' juries and deliberative polls also challenge another common perception about citizen participation, namely, that real people--as opposed to the ideal people of political theory--do not desire it. Organizers frequently note the positive response of participants to the very existence of forums that take their ideas seriously and provide a platform for nonmediated, nonadversarial debate. In a world of professionalized, airbrushed, market-tested, and ultimately unbelievable politics, these sites of public conversation can seem like democratic oases. Further, these procedures cast critical light on "rational ignorance" theories about the logic of persistent deep deficits in Americans' political knowledge. Citizens' juries and deliberative polls demonstrate that public knowledge can be improved by deliberative environments that provide information resources and hospitable conditions for dialogue.
Just as their organizers insist, these forums have clear advantages over existing modes of connecting the official world of government to the public sphere. They offer a much richer context for opinion formation than a public opinion survey and avoid the partisan hazards, narrow self-interests, and short-term biases that can afflict town hall meetings and public hearings. They promise a channel of communication between the public and the official worlds less distorted by mass media emphases on personality, dramatic events, and attention-grabbing stories. Though usually not formally linked to any government policy-making process, these forums can exert some pressure, albeit inchoate, on formal decision making. Their results are, in some fashion, part of a public discourse that would not exist otherwise. Because of the credibility earned by their normally rigorous format, these results can be used by politicians, officials, and journalists to push for policy changes. Additionally, especially when broadcast by partners in television or print journalism, citizens' juries and deliberative polls can reach a public audience larger than the informal networks of the participants themselves. Though admittedly sparse, the audience for public affairs programming offers opportunities for social impact that go beyond the confines of the deliberative forum.
Advocates of citizens' juries and deliberative forums are well aware of their limits, however. Primary among them are their lack of formal authority and their related lack of public accountability. The electorate has not authorized these forums to accomplish a public task, nor have official bodies such as legislatures, courts, or executive agencies typically authorized them. Rather, they have been organized by academic research units, nonpartisan issue advocacy groups, media organizations, and the like. Though frequently linked to official bodies--from which they draw witnesses, expert participants, and oversight board members to ensure fairness in briefing materials--they usually have no formal public authority and have none of the accountability measures attached to public authority, such as procedural transparency, open public records of the forum, and any follow-up mechanism to challenge or appeal the results. Indeed, the lack of accountability devices can rear up as a focal point of criticism when specific citizens' juries attempt to influence policy makers, as they have in the United Kingdom. Once such juries are linked to the formal decision-making process, pointed questions emerge regarding the choice, training, and fairness of facilitators, the selection of witnesses, and other aspects of the process. Some studies have even found that the more seriously the formal political world takes a citizens' jury, the more sabotage takes place--in the form of partisan withdrawals of expert witnesses and refusal to cooperate in the construction of briefing materials. Reflecting on the strategic complexity of linking to the real world of politics, Damien French and Michael Laver conclude that "deliberation can only be used for issues on which key stakeholders do not have intense and divergent interests--crudely, that deliberation is most likely to be successful when it is least needed" (p. 443).
Though the lack of impact on policy debates is frankly acknowledged by advocates, there is a deeper problem involved. Because of the free-floating nature of these forums, what I will call the ontological status of the participants' collective effort is unclear. Consider Fishkin's otherworldly description of the deliberative poll as "a counterfactual representation of public opinion" that should be taken seriously by lawmakers because "the process represents everyone under conditions where they could think" (p. 27). The poll, in short, represents what "constituents would think about an issue, once they were well informed and got the facts, heard the arguments on either side, and had a reasonable chance to ponder the issues" (p. 75). Yet deliberative polls do not exist in political time and space the way votes, speeches at formal political hearings, or protest marches exist. They do not contribute to an ongoing institutional or cultural memory since they do not belong to an institution or a particular broad-based organization. The ontological status of the work done within the deliberative poll is that of a research subject's contribution, and it exists in time and space the way survey data and research analyses exist. Indeed, the civic limbo of not being in the private sphere yet not exactly being in the public sphere is characteristic of the participants' experience: They "act" politically but are in no way involved in political action.
None of the following originates from the agents involved in citizens' juries or deliberative polls: the impetus to join others in discussion, the selection of the issue to consider, the reflection on each other's positions. What substitutes is a variety of incentives, procedural rules, and facilitated prompts. While the same charges might be leveled at the traditional legal jury, in fact this body has a much thicker ontological status. Though a juror has no choice but to serve and must follow closely guarded procedural norms, once on the jury she has real existence in political space and time. She becomes a load-bearing member of the court and as such holds responsibility for justice one case at a time. Her work on the jury--the verdict--exists to be judged by herself and others.
At root, these mini-publics, as Archon Fung has called them, borrowing from a concept Robert Dahl developed in his book Democracy and Its Critics, are not public at all. There is no public ownership of the process--indeed, private trademarks have been sought and granted for the deliberative poll and citizens' jury. Advocates acknowledge that citizens' juries and deliberative polls do not adequately link to either the public sphere or to the formal policymaking process, yet the problem goes deeper. These forums are not public in any socially or politically meaningful sense: They do not exist of, by, or for the people, nor are they part of an organization, social movement, or institution that can safely be said to belong to the people. In "Consulting the Public Through Deliberative Polling," Fishkin wrote of participants as being "a statistical microcosm empowered to think about the issues in question under favorable conditions" (p. 128), but in fact no specific person or group has gained any power. Only the nonexistent, and indeed "counterfactual," public that comes into view through the lens of the citizens' jury or deliberative poll process could be said to be empowered.
By contrast, the practice of joining an organization, of voting, of taking part in a municipal government committee, of serving on a jury has the ontological thickness needed for real empowerment: There are established, if rarely used, means and channels of influence and accountability. Though slight and sometimes imperceptible at the macro level, civic contributions of these sorts slowly construct and reconstruct the institutions of democracy. Sherry Arnstein's image of the ladder of participation, "with each rung corresponding to the extent of citizens' power in determining the end product" (p. 217), is rightly suggestive of the need for something solid that can be used to increase civic competencies and collective democratic self-confidence. The vitally important elements of holding responsibility for a public decision and being accountable for that decision are missing from citizens' juries and deliberative polls, deficits that may stunt the real growth of a more participatory democracy and pose significant risks. A conviction can be appealed, for example, and a jury having trouble in deliberations can reach out to the judge for instructions, but who checks and balances the authors and researchers involved in the citizens' jury or the deliberative poll? All choice procedures are limited and flawed, but for those owned by the public, such as the traditional jury, there are well-established checks and balances that protect individuals and inform the public in the process.
Legal Jury's Death and Resurrection
While jury-like forums have spread outside the courts, traditional legal juries have all but vanished. This should raise more doubt than it has thus far about the health and long-term viability of the new participatory experiments. Is the symbolic being preferred to the concrete? Are contemporary institutional conditions more favorable to ontologically thin modes of public participation? We should examine more closely how and why the traditional jury lost ground.
From the late nineteenth century on, trial by jury in the United States waned even as criminal caseloads increased. What replaced it, in large part, was plea bargaining, in which a defendant pleads guilty in exchange for the prosecutor bringing fewer charges or reducing the seriousness of the charges--from felony to misdemeanor, for example. All parties benefit: The prosecutor earns a conviction, the defendant avoids the risk of a greater penalty for the charge in question, and the judge expends less time and court resources. By the end of the 1920s, plea bargaining had become the normal way of handling criminal cases. Between 1927 and 1930 in Northern California, for example, 93.5 percent of non-liquor criminal convictions and 98.3 percent of liquor convictions resulted from a guilty plea. Plea bargaining, wrote legal historian Lawrence Friedman, was "part of the trend to professionalize and rationalize criminal justice" that shifted "the focus from the courtroom, and the lay jury, to lawyers and prosecutors" (p. 251).
The jury trial has continued to shrink over the course of the century, and with increasing rapidity. In "The Vanishing Trial," Marc Galanter found that from 1962 to 2002, the percentage of federal criminal cases going to trial declined about 30 percent, from 5,097 to 3,574, with much of the decline happening in the last ten years of the period. At the state level, where the large majority of criminal cases are heard, the number of jury trials shrank by a third, from 42,049 in 1976 to 35,664 in 2002, disposing of 1.3 percent of all criminal cases filed in 2002 compared with 3.4 percent in 1976. This is so even though criminal caseloads have more than doubled.
Some legal scholars, like Galanter in "A World Without Trials?" have pointed to "changes in elite ideology, institutional practice, and legal culture" as reasons for the decline. Others, such as Neil Vidmar and Valerie P. Hans or Bruce P. Smith, suggest that plea bargaining is part of a more general trend of non-trial procedures, such as alternative dispute resolution, which have become more popular because they are cheaper and less risky for the parties involved. One factor that does not seem to be relevant is public opinion as measured by the Harris Poll, which continues to strongly support the jury system.
The jury's decline has not been taken lightly by many legal academics, court observers, and court professionals. According to Boston Federal District Court Judge William G. Young, the institutional evaporation of the jury trial undermines core constitutional protections for criminal defendants: Those who "request the jury trial guaranteed them under the US Constitution" may very well face "savage sentences" as steep as five times as those who accept a plea bargain. Such a "trial tax" is akin to a presumption of guilt and pressures even innocent defendants to take a plea bargain.
The criminal justice system's acquiescence in the jury's decline, Young writes, is a rejection of "the most stunning and successful experiments in direct popular sovereignty in all history" (p. 70). As Robert Burns keenly notes, what is at stake is the difference between a private and technocratic system of criminal justice and an open, public system: "This plenary public dramatic event has been replaced by various pretrial and post-trial procedures, largely conducted behind closed doors and often in a technical language far from ordinary modes of speech" (p. 88). Even with the support of public opinion, a strong corps of defenders within the legal profession, and a solid grounding within the national and state constitutions, the jury has imploded. This should be more of a worrying sight than it has been for advocates of new experiments in participatory democracy.
It is true that the traditional jury lacks some of the valuable attributes of the new experiments. Citizens' juries and deliberative polls have more capacity for dialogue and foster reflective conversations among lay citizens and others, such as expert witnesses and officials. Thus, the new jury experiments aim to create a more open and freewheeling public communicative space. Yet, while the new forms are attractive, they often produce merely symbolic action and typically have only limited long-term efficacy. The traditional jury shows the advantages--from an ontological standpoint--of institutional entrenchment but also the dangers. In principle and in early practice, the jury was a remarkable concrete embodiment of popular sovereignty. Lack of powerful institutional support, however, has led to sharp declines. The upshot of this discussion is to focus attention on how reforms to both the new and old juries might usefully incorporate the lessons of these experiences.
The tasks for legal jury advocates are clear but difficult. First, many American judges and lawyers already endorse jury reforms that can be readily implemented, such as allowing note taking, deliberation during trial breaks, and questions for witnesses, which further the goals of communication and public ownership. Second, a more aggressive line should be taken on the necessity of jury trials. Constitutionally, a return to the jury trial as the norm rather than the exception is easy to contemplate because the jury holds such a prominent place in the framing and ratification debates and in the body of the fundamental law. Yet because of the proceduralism of the American trial, with its multiplicity of rules of evidence and exclusion, the modern jury trial is expensive and time consuming. Prospective reformers will need to conceive ways of streamlining court process. Third, other, more controversial changes should be carefully considered, such as an increased role for juries in sentencing. The Supreme Court has mandated that death penalty states must give the jury a sentencing role, but nearly all states block juries from non-capital sentencing decisions. It is time to question this restriction.
In these ways and others, the traditional jury can become a more robust communicative forum, as the new jury-like forums have been. Citizens' juries and deliberative forums, to achieve their democratic promise, must strengthen their institutional standing and their concrete public grounding. Advocates of new and old jury forms alike have much to learn from each other as they seek to reshape and renew American participatory institutions.
Arnstein, Sherry R. 1969. "A Ladder of Citizen Participation." Journal of the American Institute of Planners 35: 216-24.
Burns, Robert P. 2009. The Death of the American Trial. Chicago: University of Chicago Press.
Dahl, Robert. 1989. Democracy and Its Critics. New Haven, CT: Yale University Press.
Dienel, Peter C., and Ortwin Renn. 1995. "Planning Cells: A Gate to 'Fractal' Mediation." In Fairness and Competence in Citizen Participation: Evaluating Models for Environmental Discourse, edited by Ortwin Renn, Thomas Webler, and Peter Wiedemann, 117-40. Dordrecht, the Netherlands: Kluwer.
Fishkin, James S. 2003. "Consulting the Public through Deliberative Polling." Journal of Policy Analysis and Management 22:128-33.
Fishkin, James S. 2009. When the People Speak: Deliberative Democracy and Public Consultation. New York: Oxford University Press.
French, Damien, and Michael Laver. 2009. "Participation Bias, Durable Opinion Shifts and Sabotage through Withdrawal in Citizens' Juries." Political Studies 57:422-50.
Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books, 1993.
Fung, Archon. 2003. "Survey Article: Recipes for Public Spheres: Eight Institutional Design Choices and Their Consequences." Journal of Political Philosophy 11:338-67.
Galanter, Marc. 2004. "The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts." Journal of Empirical Legal Studies 1:492-95.
Galanter, Marc. 2006. "A World without Trials?" Journal of Dispute Resolution 7:7-34.
Harris Interactive. 2004, July. "Jury Service: Is Fulfilling Your Civic Duty a Trial?" Prepared for the American Bar Association. http://www.abanow.org/wordpress/wp-content/ files_f1utter/1272052715_20_1_1_7_Upload_File.pdf.
Smith, Bruce P. 2005. "Plea Bargaining and the Eclipse of the Jury." Annual Review of Law and Social Science 1:131-49.
Vidmar, Neil, and Valerie P. Hans. 2007. American Juries: The Verdict. New York: Prometheus Books.
Young, William G. 2006. "Vanishing Trials, Vanishing Juries, Vanishing Constitution." Suffolk University Law Review 40:67-94.
Albert W. Dzur is professor of political science and philosophy at Bowling Green State University. His latest book is Punishment, Participatory Democracy, and the Jury (New York: Oxford University Press, 2012).