It is July 25th and I am still at liberty. I have, as promised, failed to appear for jury duty in response to a summons from the Superior Court of Santa Clara County. This means that a bench warrant may have already been issued for my arrest. In practice, I might remain at liberty for quite some time; police officers rely primarily on traffic stops to apprehend wanted persons, and as a 49-year old white male, albeit with a beard and long hair and driving an old beat up white 1976 Toyota Corona with the license plates N4RKY, I attract considerably less police attention than many.
The fact that I might remain so long at liberty even with an outstanding bench warrant is at the heart of my thoughts on the jury system today.
In my fury at being called yet again for jury duty, I cited the 13th and 14th Amendments to the US Constitution. The 13th Amendment protects against involuntary servitude; it offers no exception for jury duty. The 14th Amendment, among other things, guarantees “equal protection of the laws,” and I argue that the repeated demands for service on a jury impose a burden on me which is far greater than on those whose financial situations are far less precarious.
Against this, the 6th Amendment guarantees, among other things, to a “right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” And an editorial in the Washington Post has argued that “the legitimacy of a court system is built in part on the participation of the widest possible swath of citizenry.”
In my case, this argument is moot. Because I see the courts’ insistence on upholding law made primarily by wealthy white males even at the expense of justice as a bias that weighs against the poor and against people of color, and because I cannot in good conscience agree to this bias, no judge will ever permit me to sit on a jury. Therefore, my “participation” wastes my own time as well as that of the court; it ultimately has no bearing on the accused’s sixth amendment rights. But there is more.
Chapter 29 of the Magna Carta reads (in translation):
No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.
The U.S. Government recognizes as “one of the basic attributes of a free trial,” the right to “a jury of one’s peers. . . . The theory is that a panel of one’s fellow citizens — one’s peers — are best qualified to judge guilt or innocence.” This right is thus “a critical right of the people, both of those who may be accused of a crime, as well as those called upon to establish that fact.” Though the 6th Amendment does not mention peers explicitly, the 14th is often understood to require a diversity reflecting the community in which the crime has allegedly occurred.
And yet, these terms, community and peer, as applied in the rationale for the jury system as practiced, are, in a culturally and socially diverse setting, so dilute as to have a meaning quite different from the–if I may dare to use the term–noble intent, that people who live as a defendant lives, who share an experience of living with that defendant, are best qualified to judge the actions of that defendant. Merely on the basis of my residence, I, an educated 49-year old white male, am putatively competent to judge anyone, not necessarily a resident, who has allegedly committed a crime in Santa Clara County, which has an estimated population of over 1.7 million.
In this county, whites account for only 63.0% of the population (against a statewide average of 76.9%). Despite my recent purchase of land, I am not a homeowner. Homeowners make up 59.8% of the population. I have a bachelor’s degree and am well on my way to my master’s; people with bachelor’s degrees or higher make up 40.5% of the population here (well above the state average of 26.6%). But such demographics barely touch on the ways I am different, ways that exclude me from the shared experiences of living of so many others.
In fact, my residence in Santa Clara County does not automatically make me a “peer” to someone accused of a crime. I can hardly judge an abused wife who has, perhaps, killed her husband. I have never been followed down or compulsively been greeted in the aisles of a supermarket by employees suspicious that I might be shoplifting. I have never suffered racial profiling. I have never been subject to the hazards a prostitute faces daily. I have never endured the ongoing harassment of lonely men seeking the companionship of women. I spent a night in jail once, but have never seen the inside of a prison or experienced the prolonged dehumanization that no longer even pretends to make better people of inmates.
What do I know of my neighbors? I know them as people I have hardly anything in common with; though we live at a naturist resort, they are non-naturist workers who party too loud and scream at their kid. Their non-neutered tomcat harasses my spayed cat, their tobacco smoke drifts in through my windows, and their dog defecates by my front porch.
As a vegan, I am part of a minuscule portion of the population, and there are astonishingly few restaurants that will cater to me. As an anarchist, I endure abuse even from my own adviser here at the university, and as a practicing lifestyle (rather than recreational) naturist, there are very few places I can even bear to live. Choosing child-freedom from when I had a vasectomy twenty-five years ago, I have never raised a family, and have certainly never borne that responsibility in poverty. I once, a long time ago, grew marijuana in a cabinet with hydroponics and lights, but have never suffered addiction to drugs or gambling; even my fondness for marijuana is now tempered by a preference to avoid drugs, budgetary constraints and an absolute intolerance for smoke inhalation. And I have never been denied the opportunities that can be lost to a drug-related conviction.
Yet the jury commissioner considers me fit to pass judgment on others.
While I have certainly been poor and know the humiliation of not being able to pay bills, not being able to pay the rent, not being able legally to support myself, and of a consequent ostracism from my family, mine is not the picture of the average defendant. Though I don’t have the article at hand, Jeffrey Reiman has documented how at every step in the criminal justice system, from the making of laws, to which crimes are investigated, to who is suspected of crime, to who is arrested, to who is charged, to who is tried, to who is convicted, to who is sentenced for longer, to who gets the death penalty, the system is rigged against the poor and against people of color. Question arises not as to whether this occurs but why it occurs.
I exist on the edge of many communities, but my eclectic combination of views and my insistence on challenging perhaps every social convention except that of sexual preference–and even here, I am appalled by the shame that censors any discussion of sex–means I am barely a member of any of them. As a scholar, I know of these things only in the abstract. Whenever I start to think I have a clue, my own students quickly set me straight with hair-raising tales of blatant discrimination, committed by people at every level of society. And even as a scholar, my refusal to align with the post-modernist or positivist theories that some would elevate as paradigms isolates me from the cliques that might shelter my ideas from critical review. Yet these are not the communities the jury commissioner is concerned with.
Communities do not exist at the county level and it is a farce for the jury commissioner to pretend that they do. They exist in the webs of contacts we make in our daily lives, the people we work with, the people we see in our neighborhoods (on those rare occasions we say, hello), grocery store workers, restaurant workers, gas station attendants, and the people we encounter on line. They exist in the contacts of oppressed people who seek each other out, people like, in my own case, anarchists and vegans.
If you put an African-American on trial, let his or her jury be of African-Americans. If you put a Mormon on trial, let his or her jury be of Mormons. If you put an abused wife on trial, let her jury be of abused wives. If you put a drug addict on trial, let his or her jury be of drug addicts. If you put an anarchist on trial, let his (mostly) or her jury be of anarchists. If you put a vegan on trial, let her (mostly) or his jury be of vegans. If you even put an ex-convict on trial, then his or her jury must be of ex-convicts. In short, when you put someone on trial, let his or her jury be of people from his or her real community, not an imaginary one of imaginary lines drawn on maps.
The state’s refusal to do this serves not the purpose of justice or the putative purpose of law, to peacefully settle disputes, but rather unmasks another purpose, to wage war against real community. It constitutes the taking of a member of a community on conditions not agreed by that community. It affirms artificial community at the expense of real community. And under the rubric of law, it attacks an individual, but avoids confronting the unique challenges that each community must surmount.
Thus, even the jury system profoundly insults a sense of justice. Why are there so many poor African-American men on death row? Because their juries included people not from their communities. Yet we are surprised when, after nearly ten years, on average, they are so frequently exonerated. In a 2006 article, it was reported that “[the Innocence Project] has helped exonerate 184 people, proving that wrongful convictions are not rare.” Indeed, “Northwestern University School of Law’s Centre on Wrongful Convictions (CWC) documented at least 38 executions carried out in the United States in spite of compelling evidence of innocence or serious doubt about guilt since capital punishment was restored in the mid-1970s.” Some people have gone to their graves, knowing far more about racism than I ever will.
Yet the jury commissioner would put me, a 49-year old white man, on a jury trying an African-American or any other person of color. We know there is bias. But the anonymous jury commissioner doesn’t care.