Juries and injustice: The fools call me in again

See update for April 28, 2015, at end of post.

So it seems like I’m getting called for jury duty every year now. I’ll never actually serve on a jury, for reasons I’ll get into, so all this is a rather pointless exercise, made worse because 1) I’m not in any way, shape or form a morning person, 2) I usually wind up getting up at what I consider to be an indecent hour to appear, and 3) I’m psychologically ill-prepared to confront authority, particularly in an unfamiliar setting.

Some will find that a surprising claim. I did, after all, recently send an open letter to the president of Saybrook University that stopped just barely short of calling him incompetent.[1] What has to be understood about this is that first, I was severely provoked.[2] But second, I was able to compose that letter over a weekend, weighing my wording with excruciating care. I wasn’t trying to spare anybody’s feelings, but I was trying to be sure I couldn’t be nailed on a stupid mistake. (Tellingly, the entirely unsubstantive response was directed against my advisor who was compelled to publicly chastise me.)

That’s an entirely different setting from a courtroom, in which my appearance is preceded and accompanied by considerable uncertainty. First, even now, I don’t know that I’ll even have to go in. I’m supposed to call in on Monday night with a group number. Second, if I do go in, there will be the jury assembly room, where I will wait for an unknown period of time. I still might be dismissed at this point. Or third, I might be required to appear in a courtroom. Even here, I might never be questioned. I might be so far down the list that I don’t even get considered as an alternate juror.

And on top of all this, I am dead tired. I am definitely not in top form. I would seriously be better off handling this at three o’clock in the morning than I am at whatever time it is I finally end up answering questions, usually from a judge. In the event, I usually don’t do well.

It’s actually an interesting display of power. When I taught public speaking, I knew what classroom I would be teaching in and I could go and spend some time just familiarizing myself with it. I was in a position of authority over my students and had little trouble exercising control over the classroom situation. That’s just about the opposite of the situation in a courtroom, where it is a judge who wields the authority, and just about everyone except my fellow potential jurors is more familiar with the setting than I am.

This is one of those settings where an ability to meditate would be useful. But guess what? I can’t meditate. As foreign as that might be to the Dalai Lama and everyone else who finds respite in meditation, I simply can’t do it. It doesn’t work for me. So yeah, I’m a bundle of nerves.

But over the years, my arguments have improved. I’m hoping I can do a little better this time. The crux of my objection is in the reduction of justice to law.

First, and this just came to my attention recently, there is the point that, if I were a better communication scholar, I might have noticed for myself. This is that the claim that law is objectively interpretable is naïve and wholly wrong.[3] Yet as jurors, we are asked to treat the law as if it were objectively interpretable and to apply it to the evidence supplied in court, setting aside all other considerations and all other knowledge.

The epistemology of that can probably be challenged on numerous grounds. For one thing, claims to objectivity are foolish. I’ll return to my application of standpoint theory here, but ultimately such claims are defeated by complexity theory. We all each occupy our own little niche in a broader system. Your perspective is not and cannot be the same as mine even if we are similarly situated. We each experience the world in our own unique ways. Edgar Morin makes the point that we are all each a universe unto ourselves.[4] Thus, objectivity is, itself, a fallacy and any pretense to it is fallacious.

Another point might be helped with an example. The first time I was called in for jury duty, the case was a traffic accident. We would be  disqualified if we were too familiar with the intersection where it occurred because we were supposed to judge based on facts presented in court, not our own experience of the setting where the events in question occurred.

In a naïve positivist view, this makes sense. Truth, it is held, reliably emerges from laboratory settings where intervening variables are strictly controlled. And that’s the same logic that’s being applied to expositions in court. Even if we accept this theory, it still comes out wholly wrong because the practice of finding truth is profoundly flawed both in police investigations and courtroom proceedings.[5]

And for human beings, it makes no sense at all. The idea here seems to be that the process of judgment arises independently of experience of a situation or of similar situations and can be applied with equal skill to situations where, preferably, we have no experience at all. Again, this is so naïve as to be absurd. Yet naïvete seems to be the desired quality.

Where then, should this judgment come from? Presumably from “common sense.” I’ll take the liberty here of quoting some draft wording from the dissertation I’m writing:

“Common sense” is, of course, dubious epistemologically: What makes “sense” “common?” And what social and cultural assumptions are embedded in so-called “common sense?” Are these assumptions, in fact, universal (“common”) or do they encode understandings of a dominant group (Morrow, 1994)?

That actually leads to the second major objection I have to the reduction of justice to law. Law is passed by a group consisting overwhelmingly of wealthy white men against everyone else. It is implemented as such[6] and in a way that magnifies the harm done not only to presumed offenders, but to their families and their communities. There is such a circularity to this criminal injustice that for all our “get tough on crime” attitudes and all the people we have locked up, crime rates are probably reduced only by about fifteen percent.[7]

A criminal justice system is criminal to the extent that it is not a system of justice. To call the criminal justice system a system of justice is to assert that the force used by the criminal justice system is morally opposite from, and morally superior to, the force used by criminals or conquerors. But then we must ask whether this assertion is true. A criminal justice system is a system of justice to the extent that it protects equally the interests and rights of all and to the extent that it punishes equally all who endanger these interests or who violate these rights. To the extent that it veers from these goals, the criminal justice system is guilty of the same sacrificing of the interests of some for the benefit of others that it exists to combat. It is, therefore morally speaking, guilty of crime.[8]

I’m not disagreeing with Jeffrey Reiman in the foregoing passage, but I want to call attention to an underlying assumption. For a system of criminal justice to be moral, in Reiman’s view, it must treat all people equally. On the face of it, and for many reasons that Reiman explores at length, the notion that our system of criminal injustice does this is laughable.[9] But this also raises the question of what equality even is. George Lakoff picks apart a number of relevant assumptions, but on top of that, he identifies ten different models of fairness, all of them familiar, each of which may lead to a different result.[10] Again, the notion of “objective” “justice” is hopelessly naïve. It can’t be objective. And it can’t really be fair because we can’t even universally agree on what “fair” is.

Since we now know that so-called “justice” is neither objective nor fair, we must examine it in the same way that I examined “common sense” above. Whose justice, really, are we talking about?

Justice allegedly exists to deter crimes against lives and property. In practice, this is much more often about property than about lives and even many of the crimes against lives arise in the course of crimes against property. At this point, very unsurprisingly, we have to note that a vast majority of crimes arise from desperation, which is to say that they are the consequence of social injustice.[11] And a constructive approach to these crimes would be to address their root causes, up to and including the system of social organization that plagues us with extreme social injustice.[12]

Yet that’s the very approach which is excluded from the courtroom. Jurors have a right of nullification. That is, they can, despite judges’ instructions, disregard the law and refuse to find a defendant guilty when to do so would be unjust. But for hundreds of years, judges have decided that law is supreme and instead of informing juries of their right of nullification, have excluded potential jurors who even offer a hint that they might exercise this right.[13] If we cannot even say that a law is unjust, we certainly cannot challenge the social order in which the rich are comfortably entrenched.

So let’s review what’s going on here. The lawyers, the judges, the law enforcement officers, and even the clerks in the courtroom are all well-paid to enforce the law of wealthy white men, the very folks whose “minority rights”—property rights—James Madison, writing in Federalist no. 10, sought to protect against those he saw as a common mob with what was adopted as the U.S. Constitution.[14] And we understand that this is the guidance that formed the earliest and therefore longest standing precedents in the U.S. legal system because one of the authors of The Federalist Papers was John Jay, the first U.S. Supreme Court Chief Justice. These lawyers, these judges, these law enforcement officers, and even these clerks are trained to enforce this law and have a stake in upholding it.

Meanwhile, the accused will very often be poor. The system is at every step, from who gets investigated, to who gets arrested, to who gets charged, to who gets convicted, to who gets sentenced how severely, biased against the poor.[15] Because the poor cannot afford attorneys and because the state—largely representing the wealthy class—supplies a district attorney for criminal cases, it is exceedingly rare that the poor will hire lawyers to pursue an accusation. And even a poor person’s defense attorney—a “public defender”—is likely to have less access to the evidence and to be ill-prepared.[16]

Moreover, in neoliberal society, the poor are increasingly stigmatized as “undeserving.” The rich, whether or not by design, use the poor as scapegoats to divert attention from their own avarice. The criminal injustice system that employs the lawyers, the judges, the law enforcement officers, the prison guards, and even the clerks largely feeds off of the poor.[17]

The jurors, however, will come from a more diverse background. Increasingly, however, they face widening social inequality. Many will fear falling into poverty and even destitution even as the rich make more and more money.[18] And the rich exploit that fear by pointing to the poor as an example of what happens to people who don’t conform.[19]

All of these perspectives—social locations—are dramatically different; indeed, this is the essence of standpoint theory. But even though I understand all this, I’ve been socialized into this system. So it’s hardly any wonder at all that I’m psychologically ill-prepared to confront the power of the court by highlighting its intrinsic injustice.

But perhaps the most telling irony of all is that while the rich are doing fine and those who are employed in the criminal injustice system are paid quite well, jurors are expected to perform their civic duty for $15 per day, but only after the first day. Does the word patsies come to mind?

Note, April 28, 2015: This post has been revised since it was originally published for clarity and grammar.

  1. [1]David Benfell, “Open Letter to Saybrook University President Nathan Long,” March 29, 2015, https://parts-unknown.org/wp/2015/03/29/open-letter-to-saybrook-university-president-nathan-long/
  2. [2]David Benfell, “Fighting the good fight: Will Human Science be saved?” April 23, 2015, https://parts-unknown.org/wp/2015/03/22/fighting-the-good-fight-will-human-science-be-saved/
  3. [3]John Hasnas, “The Myth of the Rule of Law,” Georgetown University, 1995, http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
  4. [4]Edgar Morin, On Complexity (Cresskill, NJ: Hampton, 2008).
  5. [5]Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (Cambridge, MA: Harvard, 2012).
  6. [6]Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).
  7. [7]Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: New, 2011).
  8. [8]Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004), 187.
  9. [9]Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).
  10. [10]George Lakoff, Moral Politics: How Liberals and Conservatives Think, 2nd ed. (Chicago: University of Chicago, 2002).
  11. [11]Steven E. Barkan, Criminology: A Sociological Understanding, 3rd ed. (Upper Saddle River, NJ: Pearson Prentice Hall, 2006).; Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).
  12. [12]Wanda D. McCaslin and Denise C. Breton, “Justice as Healing: Going Outside the Colonizers’ Cage,” in Handbook of Critical and Indigenous Methodologies, eds. Norman K. Denzin, Yvonna S. Lincoln, and Linda Tuhiwai Smith (Thousand Oaks, CA: Sage, 2008), 511-529.
  13. [13]James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (New York: New York University, 2006).
  14. [14]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (1982; repr., New York: Bantam, 2003).
  15. [15]Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).
  16. [16]Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (Cambridge, MA: Harvard, 2012).
  17. [17]Herbert J. Gans, The War Against The Poor: The Underclass And Antipoverty Policy (New York: Basic, 1995); Michael B. Katz, “How America abandoned its ‘undeserving’ poor,” Salon, December 21, 2013, http://www.salon.com/2013/12/21/how_america_abandoned_its_undeserving_poor/; John Paul Rollert, “Greed Is Good: A 300-Year History of a Dangerous Idea,” Atlantic, April 7, 2014, http://www.theatlantic.com/business/archive/2014/04/greed-is-good-a-300-year-history-of-a-dangerous-idea/360265/
  18. [18]Associated Press, “80 percent of U.S. adults face near-poverty, unemployment, survey finds,” CBS News, July 28, 2013, http://www.cbsnews.com/8301-201_162-57595861/80-percent-of-u.s-adults-face-near-poverty-unemployment-survey-finds/; Emily Badger, “Political Polarization Grows as Job Security Falls,” Pacific Standard, July 19, 2011, http://www.psmag.com/business-economics/political-polarization-grows-as-job-security-falls-33968/; Megha Bahree, “Who’s To Blame For The Increasing Gap Between The Rich And The Poor? Market Policies, Says New Report,” Forbes, November 5, 2014, http://www.forbes.com/sites/meghabahree/2014/11/05/whos-to-blame-for-the-increasing-gap-between-the-rich-and-the-poor-market-economy-says-new-report/; Economic Policy Institute, “The Top 10 Charts of 2014,” December 18, 2014, http://www.epi.org/publication/the-top-10-charts-of-2014/; Lawrence Mishel, Heidi Shierholz, and John Schmitt, “Don’t Blame the Robots: Assessing the Job Polarization Explanation of Growing Wage Inequality,” Economic Policy Institute, November 19, 2013, http://www.epi.org/publication/technology-inequality-dont-blame-the-robots/; Mark R. Rank, “Poverty in America Is Mainstream,” New York Times, November 2, 2013, http://opinionator.blogs.nytimes.com/2013/11/02/poverty-in-america-is-mainstream/;
  19. [19]Herbert J. Gans, The War Against The Poor: The Underclass And Antipoverty Policy (New York: Basic, 1995).