We should not have jury trials anymore
Another way in which rule by experts poisons modern life
The above photograph, dear reader, was chosen to lazily highlight the banal fact that technology changes what is possible and what is manifest in human life and systems. Eighty years in the past and for some decades afterward, almost nobody in America was obese or even overweight. Especially after the 1980s, food became cheaper thanks to the Green Revolution (wikipedia), as well as more heavily-processed; cigarettes were demonized by statistical phantoms1; and now regular American adults for the most part are all gigantic.
The point: There are some human virtues, things that are good about our behaviors and our structures, that depend on natural limitations; and the nature of technology is to erode limitations. One now has to get the special kind of ketchup, to get regular ketchup.
With that framing, here come my comments on jury trials. In response to yesterday’s post regarding an amusingly flawed proposal to replace prisons with a combination slavery / homo-sacer model, commenter Theoren Beckett offered a model which serves as a convenient prompt for me to espouse a long-standing and probably unoriginal gripe I have kept on my back-burner:
By no means am I championing this...
What If: A system develops where a person or legally defined person (corp) can purchase/earn criminal footprint credits the same way you can purchase carbon credits. In this manner, a person/corporation could offset their crimes economically. It’s reminiscent of our already flawed version of capitalism. And in a sense, it’s similar to a criminal justice system that operates more like FTC/SEC regulations and penalties.
Of course — and, as I said, this is probably not an original observation — this wouldn’t actually be different than how criminal justice already operates. Instead of paying the government directly, corporations and wealthy individuals buy their way out of convictions by giving money to lawyers who demonstrate why given laws have not in fact been violated, or at least that there is reasonable doubt regarding the same claim.
There are two ways of looking at this problem, but only one of them is consistent with the founding vision of the justice systems of early American states. Either the problem is that the rich are evading state-administered punishment for crimes and they shouldn’t, or everyone else is failing to evade this punishment and they should.
It is not sufficient to simply observe that, contra the stated language of the Founders and their pretexts in English and Colonial law, modern justice operates as a multi-tiered system. We must establish which of the tiers was meant for everybody.
And so even though this criticism might seem to be aligned with my project on liberalism generally (which, by the way, was the subject of another post this weekend), here my problem is not with the vision of due process as a “universal” right per se, but simply that the means designed to prevent arbitrary deprivation of life and liberty by the state rapidly became so obsolete that they have served the opposite end for over a century — jury trials enable wanton abuse of state power.
The problem: Too much science
I acknowledge again that my introductory example of the green revolution and obesity is lazy, but at all events it points to the problem with jury trials. The moment forensics and pathology were introduced as technologies of the state, it ceased to be possible for American citizens to rely on their “peers” to soundly evaluate state claims of evidence, just as after the 1980s no American can rely on their “peers” to fit into an airplane seat.
“Unreliable,” of course, does not imply that the justice system immediately became capricious in every case — however, that is close to the truth of things today, when even representatives of the people within the state as well as appointees of the judiciary are hostage to experts to define how laws apply to reality. No state entity, whether a purported dictator or a committee of bickering legislators, can write or execute any law until aids have consulted experts who generate a model of reality that defines what actions accord with that same execution. This is rule by experts; the expertocracy; whatever one wants to say, again this is nothing original on my part. Essentially it is the problem of government actors usually not being able to even know if they are governing — if laws are being enforced — unless the same is verified by someone else.
Exactly the same problem prevails in criminal jury trials, except here government actors have incredible unilateral power, while it is the jury who is held completely epistemically hostage. For in the case of such trials, it serves the priorities of the involved state actors to arbitrarily “know” whatever they went (which is, that whoever has been successfully indicted for a crime is guilty). The state therefore merely selects whichever experts affirm this conclusion, and the experts are afterward placed into a room with 12 citizens (usually, as it is well-known, selected for unintelligence) to cow them into thinking the state’s case is conclusively proven.
Besides the natural implication that the poor have less defense against this capricious exercise of state power than the wealthy (because they cannot afford a defense who will source a convincing counter-expert), we must consider the essential impropriety of this system of leaving unqualified jurors to assess niche technical and biological evidence. Again, what is important here is to establish which tier reflects what Americans are supposed to experience from the justice system — the wealthy, who can pour hundreds of thousands of dollars into having lawyers explain to juries rightly or wrongly2 why there is reasonable doubt, or everyone else, who cannot.
For this, I will use the following remark written by Jefferson, which I encountered while replying to the comment above. My method in legal research is often to pull up the constitutions of the original 13 states; today I chose Massachusetts, which led to a useful listing of legal precedents for the American right to trial by jury.
Thomas Jefferson to Pierre Samual Du Pont de Nemours, 24 April 1816, “Founders Online”, National Archives:
“[W]e think experience has proved it safer, for the mass of individuals composing the society, to reserve to themselves personally the exercise of all rightful powers to which they are competent, and to delegate those to which they are not competent to deputies named, and removable for unfaithful conduct, by themselves immediately. hence, with us, the people (by which is meant the mass of individuals composing the society) being competent to judge of the facts occurring in ordinary life, they have retained the functions of judges of facts, under the name of jurors.”
Thus we have Jefferson opining that jury trial is a fit system in American governance because everyday citizens can “judge the facts occurring in ordinary life.”
Which by definition excludes 100% of expert testimony!
Seeking answers in the past
It is sometimes a matter of much effort to articulate my observations that supposedly anti-liberal state systems are perfectly capable of safeguarding individual rights. Here, that is not so much the case.
If we take trial by jury to be obviously a system consistent with protecting citizens from abuses of state power in accordance with America’s founding sentiments, we must wonder why Massachusetts explicitly wrote in a failsafe for jury ignorance in the 1641 Body of Liberties charter.
In all cases where evidence is so obscure or defective that the Jurie cannot clearely and safely give a positive verdict […]
Knowing that the Founders wrote trial by jury into the Bill of Rights, as did the earliest state constitutions, when it was expected that trials would not introduce evidence beyond the ken of the common citizen, and knowing that the earliest American declaration of rights already saw the need for protection against cases where this expectation failed to be met, it is indefensible to allow juries to decide the guilt or innocence of fellow citizens in any case where technical evidence is involved (which is essentially always). In other words, when it comes to giving her citizens fair trials to limit arbitrary state power, America is doing it wrong.
If you derived value from this post, please drop a few coins in your fact-barista’s tip jar.
Inspired by a recent post by Jon at Inflamed Cynic, I thought I would try to defend my pet theory that the reduction in smoking after the 1970s is what is driving the widely-believed “decline of the mid,” simply by removing would-be slender women from the overall pool of women. However, the statistics on smoking and obesity are totally unsupportive of any conclusion to this effect (smokers are more obese than non-smokers), which I think is due to unfortunate unhealthy user biases. It is therefore more parsimonious to blame the Green Revolution and explosion of processed snacks.
Defense lawyers, as far as I understand, are just as allergic to intelligent jurors as the state, as the most efficient defense in most cases is simply to throw jurors into a state of confusion about as many facts as possible.
There are other alternatives to the judgement by ignorant jurors vs judgement by AIs. In Sweden we don't have jury trials. Instead, cases are tried under a system where there are lay-judges (nämndemän) who assist the presiding judge, or judges (sometimes we have more than 1) with the trial. These are the 'peers'. They are appointed at the municipal level by the political parties in proportion to how the municipality voted in the last election. Since we have proportional voting, and a good number of political parties, this is an unexceptional way to organise things. It cuts down on the practice of political parties weaponising the legal system in order to damage their political opponents. You'd have to change the way this is handled if you live under a 2-party system or with winner-takes-all voting.
The lay judge position does not pay well, but is very, very prestigious. And in order to be considered you have to study and pass an exam about the ins and outs of Swedish law, what is criminality, and the like. So you get a jury of your very well informed peers -- or at least that is the ideal. There is a certain amount of over-representation of 'wise older people who have seen a lot of life and who are retired, thus with plenty of time for these duties' but there are also a cohort of 'young people who understand the new technologies that didn't even exist a few years ago' in the system. Both sorts are needed. And all the lay judges can ask whatever questions they like, to draw whatever information they want out of the witnesses. So a strategy of 'keep the jury in the dark about X' does not work here. The lay judges are exceptionally curious people, and if they smell something fishy, they will ask questions until they are satisfied they understand things well enough.
I'd try to get something built along these lines before throwing in the towel and let the AIs judge everything.
One particular trial of which I was a juror was quite amusing when I answered a rather ambiguous question by the prosecutor during jury selection. I responded the only way the question could be answered truthfully - with an ambiguous answer. The prosecutor proceeded to argue with me. The judge called us both before the bench and told the prosecutor "don't argue with the jurors". The amusing part was that I was selected to serve. When my name was called the prosecutors immediately grabbed their list of jurors to see what happened. It was obvious they meant to strike me. Anyway, I was glad to be on the jury as we found the defendant Not Guilty. It was absurd that the defendant was charged. This and a personal incident has made me quite jaundiced toward the justice system. There really are some bad actors in amongst them.