Juries have been at the center of some of the most emotionally charged moments of political life, especially in high profile cases like the trial of Derek Chauvin for George Floyd's murder in 2021. This week, we explore juries as a democratic institution. Our guest, Sonali Chakravarti, argues that juries provide an important site for democratic action by citizens and that their use should be revived. She says juries could be a forward-looking institution that nurtures the best democratic instincts of citizens like examining their own perceptions and biases and engaging in dialogue and deliberation.
Chakravarti is a professor of government at Wesleyan University and the author of "Radical Enfranchisement in the Jury Room and Public Life," published by the University of Chicago Press in 2020. Her work focuses on public participation in legal institutions and the relationship between law and politics.
Episode Transcript
Chris Beem
From the McCourtney Institute for Democracy at Penn State University, I'm Chris Beem.
Candis Watts Smith
I'm Candis Watts Smith.
Jenna Spinelle
I'm Jenna Spinelle and welcome to Democracy Works. This week, we are talking about juries. And our guest is Sonali Chakravarti, who is a professor of government at Wesleyan University, and author of the book radical enfranchisement in the jury room and public life. You know, we talk a lot on the show about voting as a civic duty. And, you know, Sonali argues in her book, and in this interview, that jury service is right up there with it as something that should be taken seriously and really thought about as an integral part of our democratic lives.
Chris Beem
Well, I That's right. But it's not I mean, she is not talking about jury service as a duty merely, she's talking about it as a form of democratic empowerment, this is a role that citizens have that is dramatically democratic, insofar as we are giving 12 citizens the responsibility and the right to determine, you know, what is going to be the consequence of a civil or criminal trial. And, and she is absolutely right to say that we don't say enough about that as a, as part of our, you know, birthright as, as, as citizens of a democracy to have that power. And to be able to, you know, express our will, and that way in it, you know, we don't do it nearly as often, but when we do it, it is far more substantive and far more important than, than voting.
Candis Watts Smith
So I really appreciate that, really, also just kind of the articulation of serving on a jury and being able to serve on the jury as maybe the kind of other side of the front the franchise. And I guess, you know, like, she helped me to connect the dot, that I think I had both of the dots there but hadn't fully connected them. In so far as I mean, in most places, the way that you become a juror or b Get into the jury pool is being a registered voter. And so I mean, that's more of a technicality. And the fact of the matter is that it doesn't have to be that way. Right, that there are other ways to find out who are eligible jurors. But, and it is often the case that is linked with voting,
Chris Beem
And I was recalled when we were when we were reading this I was recalling, when EJ Dionne and Myles Rapoport were on the show. They recounted that during the Civil Rights era, far from seeing jury duty as a pain, something they wanted desperately to get out of the African Americans in the South demanded the right to serve on juries. And, you know, the reasons for that are obvious. But you know, it is it you know, if it's part of infringement enfranchisement for citizens, then it is absolutely imperative that every one have that have that opportunity, right. And then that leads to a whole variety of questions about the fact that so few jury trials go to juries, the fact that I mean, literally like 3% 2.5%, it's virtually none. And then you talk about the process by which juries are selected, not just into the pool, but then from there on out. And there's all kinds of ways in which these, these questions of control come up. And then also, how do they, you know, how do they advance or compromise the democratic dimension of jury duty?
Candis Watts Smith
I think the other thing that is important to consider is this idea that, okay, we don't, we don't want to people, on average, do not want to serve on juries, but there also is a suspicion that the people on the jury are not capable of doing their job really well, either. And what I think that kind of tells us is about the health of democracy, too. So Right. So one, the kind of the extent to which people want to constrain access to the jury is a signal of the health of democracy. And I think also the extent to which we believe our fellow citizens are capable of making excellent decisions in this space. Right? Do we trust them? Do we think they're capable of doing that work in a non biased way? I think also tells us a little bit about where we are in our kind of civic relationship to one another.
Jenna Spinelle
Have either of you ever served on a jury? I know, I've never even been called to for the initial round.
Chris Beem
Yeah, I have. I have, I was actually foreman. And, and it was I, it was an incredible responsibility. I was worried, scared to death that we were not going to make the right decision that we're going to make the wrong decision. And you the way, right, either way, this is terrible, this would have been terrible. If, you know, if the person was guilty, and we found them innocent, that would have been terrible, and far worse. If they were innocent. We found them guilty. And it was a challenging, because, you know, it was bringing together people who were vastly different in terms of their background and, and education and every, you know, profession, everything else. But, you know, I feel like we did right, it was we did the right thing. And the first thing when I got out was I asked the, the, the, you know, the person who was our the officer who was kind of a liaison, I said, Did he have any priors? And he said "no" and I'm like, "ok, good."
Candis Watts Smith
Chris, do you, like, feel like that process? made you feel more confident about that system or less confident?
Chris Beem
You know, this is not the answer you want. But I'd say both. I feel like there is that lawyers are very good at manipulating juries, and they do it in a variety of ways. Subtle and not so subtle. That manipulation extends to the construction of a jury. You know, it's it's their job to win the case. And so it's their job to work the jury in a way that is not a that is built more on rhetoric than it is on a cold and deliberate accounting of the facts. On the other hand, I would also say that we all took the responsibility of being in that room very seriously. And we were not about and I you know, and I said, we're not leaving until everyone is able to go home and sleep well, tonight. And and so we did, we stayed and we just worked it through. And, and that's I mean, so, yeah, I mean, I think as long as you as long as you have that, and that's the job, I think of the judge, right. And he was very in this case was very deliberate about his mandates to us, and and what we should be looking for and how we should be examining the law. And so I think, you know, in in most cases, as is true, in most cases, the person who is has ultimate authority is going to be the one who sets the tone. And if the tone is set correctly, then it's likely to be a good experience.
Jenna Spinelle
Thank you for, for sharing that. Chris. It's interesting to think about your specific example in the context of the broader themes that Sonali draws in her book and in the interview. So without any further ado, let's get to it. Here's the interview.
Jenna Spinelle
Sonali Chakravarti, welcome to Democracy Works. Thanks for joining us today.
Sonali Chakravarti
I'm happy to be here.
Jenna Spinelle
So, so much to talk about in your work with on juries and the notion of radical enfranchisement that you write about in your most recent book. But I I'd like to start maybe with a little bit of history about like, how and why we have juries in America in the first place. As I was reading your book, I was thinking about some of the ways that you know, the the idea of of a jury it kind of runs counter to what we hear about the founders and their skepticism of direct democracy and giving too much power to people who are not elites, and also to the idea of liberalism that you know, we should asked authority in institutions and experts. So juries are kind of the opposite of both of those things. I wonder if you could just talk a bit about how and why they came to being in this country?
Sonali Chakravarti
Yeah, thank you for that question. Because I think you're right that juries do push against so many of the other things that we think protect democracy. And that's another reason why supporters of juries often come from across the political spectrum, you sometimes get strange bedfellows. What do you what do you write about juries? But to your question about how jury started, one history traces the jury back to the back to the Magna Carta. And in that document, there was provision that, that anybody who was trying before the king had to be tried by a jury of peers. And at that point, what peers meant were elites and barons are people who you would think of it as ordinary people. But it's still significant, because there was this understanding, even in that document, that the king can have total control of the procedure, that for a procedure to be legitimate to be following rules other than, you know, brute force, there has to be some type of check against arbitrary power. And having a jury is a very important way to do that. It's a way to tie the hands of the sovereign, so that the rule of law can be paramount. And the founders also understood this. And juries were really important in the colonial period, when those in the colonies didn't think that the law of England should be applied in the same way or wasn't relevant. There is the famous libel trial of John Paul's anger, where a jury found the defendant not guilty for for libel, because what this newspaper editor published was true. And they didn't feel that the defendant should be published for libel if the information was true. And they went against what the stated law was. And that was an important case that showed the independence of the jury how important it is for a local community to decide, not only is this a law, and is there evidence showing that someone broke the law, but do we want to punish this person in at this moment, and and that idea of local control over punishment, that kind of final stage when the before the state can, can be become involved and taking away one's liberties was something that was very important for the founders to continue. And so they built the right to jury trial into the sixth and seventh amendments of the constitution for criminal trials and for civil trials. And, and there was this sense that, that even though we're breaking away from a monarchy, we still think that despotic authoritarian power could be a problem, it could be a problem with the democratically elected leader, it could be a problem with prosecutors, and and the jury is one way to stop that from happening.
Jenna Spinelle
And I think that sets us up nicely for your concept of radical enfranchisement. Now, not just that juries can come together and address the question at hand, Allah 12, Angry Men or any other conception of juries in in popular media, you argue that juries can actually perhaps expand the bounds of, of democracy or, you know, build even more on this idea of the power that we have as democratic citizens.
Sonali Chakravarti
Right, when when you hear the term enfranchisement, people think automatically of voting and like that's the pinnacle of being a citizen. And if you're in franchise, you know, you're about your right to vote, and you use it. And I think that's true, it's a very important one, and is the key to democratic representation. But the other half of enfranchisement is the right to serve on a jury. And I write about that, because I think it's the most demanding obligation we have. And if you think about when you're a voter, you have to think about what your preferences are, and express them, like being a juror means you're not just think about your own preferences, you're thinking you have you making a decision that affects someone else's life. And you have to do it through discussion and persuasion and deliberation with other people. So just what it means to be a juror requires so much more in terms of civic knowledge in terms of knowledge about, you know, the human psyche, in terms of knowledge about how to engage with other people how to communicate. And so it's just a really robust understanding of what it means to be a citizen. And kind of the flip side of that is that when you serve as a juror, people, you see that like, if the state trusts me to make this decision, like I am, you must be so you know, like, you know, someone worthy of this and so it has this snowballing effect. I think of a being being told that yeah, we have lots of lawyers, you know, who know the law but it's you, you know, you 12 people we trust to make a decision about someone else's fate. And and I think the combination of the content density of the task and the feeling that the jurors have leads to a different relationship to the law after jury service. And that's really kind of the radical part of our iPhone Frenchmen. enfranchisement comes out in that once you're a juror, you see that like, actually, like democracy needs me to participate in it to work.
Jenna Spinelle
You know, as I was reading your book, I couldn't help but think about Desmond Meade from the Florida rights restoration coalition we've had him on on the show before and you know, he's really worked to to get voting rights and civil rights restored for formerly incarcerated people. And that's, you know, one group in some places that, you know, formerly incarcerated felons, it's one group in some places that does not have the right to serve on a jury. And so we also know about, you know, in the, in the Jim Crow era, African Americans were excluded in a in a variety of ways from serving on juries. And so we've we've had so much attention and so much progress about voting rights. And you know, that side of enfranchisement that you were talking about before, I wonder where we are comparatively, with the right to serve on a jury? Are we are we at the point where juries really are truly representative of our democracy as it stands today?
Sonali Chakravarti
Yes, my answer to that is no juries fall woefully short of the representative ideals, that we would like to see injuries and the move to allow formerly incarcerated people to serve as jurors, I think he's a really good one. And I think, in some ways, is a kind of a limit case, because like, if we can work on that and think about what that means, hopefully, many other people will also be allowed to serve. But what we know is that people of color don't serve on juries at the same rate. And that is, especially in cases where there are black defendants and we know that across the country, there are many trials that there is not a single black juror for that for that case. And, and that, and this is a huge problem that like going back to the idea that what we want from jurors are knowledge of the community in which the crime took place and knowledge of how the laws is enforced. And so if we have such racial disparities on juries, can we really say that it is, that is a fair trial. And so I think there are a couple things we can do to improve racial representation on on juries. One is to get better lists that we draw a jury names from. So right now, many states use what are called motor voter lists. So they look at lists of people who have driver's licenses and lists of people who are registered to vote. And you could be on both lists, you know, and then they, you know, pull randomly from that from that collection of names. And so that is good at picking up certain people. But it is not good at picking at picking up possible jurors from people who might change addresses a lot, who don't, who don't have a driver's license, who might not register to vote, but are citizens to be a juror you need to be 18 years old, and citizen. And you also need to be comfortable with English as the language of the courtroom. So one that you know, possibilities for states to follow up Massachusetts does, which it has residency lists that are updated yearly about, like, who actually lives in this town this year. So that would be better, because it picks up renters and other people. Another thing to do is to use a kind of tax records and to see who pay taxes in this area in the past year, and use that as the list. So that's one way to get more more representation into the larger pool. And last thing I'll say about this is that I think another way to, to create rich, more racially diverse juries is similar to what we saw in the Shogun trial and 2021. So I've written about how the judge set up a culture of trying to create an inclusive jury in that in that trial. And it's very unusual case, it was, you know, washed around the world. It because it was about the death of George George Floyd and the national and international movement for black lives matter that he set into place. So the judge knew that like, we need a racially diverse jury for this so that an all white jury is not going to be seen as a legitimate jury in this case. And I think attorneys on both sides also knew that like we you know, it doesn't make sense to pick off all the orders of color. And and so a couple of good things happened during the warrior selection for that case. One was they got a lot of diverse jurors in the larger pool. You know, other scholars have commented on like how many young people were you know, showed up to jury duty that day and so so they can get a good list or they also that you know, the way the Minnesota state court system works was able to draw A good pool of jurors good meaning, you know, diverse in, you know, in a couple of different axes then the second thing that I think the judge did during that that trial that was good was he really encouraged all jurors to speak very candidly about their reactions to the death of George Floyd and what happened in its aftermath. And so you had jurors saying, like, you know, like, I can't believe you or another person died this way or this, you know, this is connected to different types of racism that we have in our society. So really candid, open statements about about what happened at that time. And, you know, the judge wanted to make sure that these jurors could also be fair to the defendant, their children. So he has several questions about that and about whether they could or whether the juror could follow the procedure of the trial, including the defendants right to remain silent. The the fact that the burden of proof was on the prosecution. So the judge didn't say that, like, you know, anybody can you who do, regardless of how they feel about trovan can get get onto this trial. But what I really appreciated was the judge held both things, you know, in a delicate balance, they have very strong feelings about George Floyd's death. But you could also be willing to follow the procedures of the court and you understand why Derek Chauvin deserves a fair trial.
Jenna Spinelle
If I think back to my own family, and you know, people that I know, who have been called to serve on a jury, their attitude is almost always well, what can I do to get out of this? Right? How what excuse Can I come up with? What can I say? Well, you know, whether it's like, before you even get to the courthouse or during the process to like, try to not do this, under any circumstances. Does that does that match up with broader public opinion about how people feel about serving on juries?
Sonali Chakravarti
I always feel like my job is to get people excited to serve on juries. And that's how I determine whether I've been successful with my students. This is like, well, they say yes to jury duty. But no, that is the feeling. And, you know, there is that kind of the old kind of chestnut is like, I've never want to be judged by 12 people who were not smart enough to get out of jury duty, you know, so in that there's both what you were saying, which is like, it's such a drag, like, who really wants to have to go and sit there for that many days, but also this cynicism about fellow citizens, right, the sense of like, yeah, I don't, I don't trust my neighbor, really, with any important decisions, or like, I'm smarter than everybody else. And, and so I, you know, one reason I study juries is because they're a microcosm of democracy. And it's like, the problem we have with juries and problems we have with democratic life. And if you think your fellow citizens are too stupid to judge your case, then like that, that is a crisis for democracy, like we shouldn't we, we should be addressing that more broadly. But as I said, that scholars who study have done questionnaires the jurors, after they've, they've served, find the opposite, that they actually are glad that they did it. They were, you know, impressed by many of their fellow jurors, you know, and, and, you know, pleasantly surprised by how seriously people took it. So, so I feel like that should also be part of education around it, that it's not, not just the kind of nuts and bolts of what it means to be a juror, but actually what people get out of it. That is that is unexpected. And and I think this could also have, you know, consequences for how many people take their cases to jury, you know, right now are just a tiny fraction of cases, go to jury, the rest are settled by plea bargaining in the, in the criminal system, and, you know, other means in the civil system. And and I think part of that is people are like I you know, I don't trust either juries, or you never know what's gonna happen, a jury or the jurors aren't gonna be like me. So I think if more people wanted to serve on juries, we actually might get more defendants choosing to go that route. I think another thing to do to facilitate that would be to make trials shorter. You know, I know some, some courts are trying to hit like three day trials or set time limits, because that both keeps down costs, but also, you know, makes it more appealing for jurors who have to pay attention for them for that amount of time. So I think changing the way we think about juries has an outsize impact on the legal system more broadly.
Jenna Spinelle
And I think that in a way, brings us back around to the idea of jury nullification that you mentioned earlier. And I know you wrote last year about how that might be used to protect reproductive rights and kind of the post roe era. So can you set that up for us and explain, you know, maybe using this issue to explain how nullification works and how it ties to the notion of radical enfranchisement?
Sonali Chakravarti
Yeah, so when during application is power the juries have to to give a not guilty verdict, without being overturned by the judge who's So you might say, Oh, look, but I thought the evidence we know was compelling. Juries always have a right to say not guilty. And this is the kind of core of their independence, right? If if we thought that other people would say that jury made a mistake, it should be guilty, then that would really gut the whole system of the of the power of the jury to act as a check on the inappropriate enforcement of punishment. And juries can decide not guilty, either, because the evidence is not there. And that's kind of a straightforward way to do it. Or they can decide that the law itself is unjust, or that it's being applied in an unjust way here, or that the prosecution was corrupt somehow, and how it presented the evidence. So these are all, you know, legitimate reasons for a jury to return a not guilty verdict. And, and we call it a notification when we think that it is one of the reasons that is apart from the evidence. So it has something to do with the law itself, or its or its application. And juries have always had this power. And it's and it's, you know, recognized by the Supreme Court, though, the court in this country has said that the jurors don't need to be informed of this of their power, that in some ways, it is kind of intrinsic and organic to what they're doing. If they don't feel like rendering a guilty verdict, they're allowed to do that. But no one needs to tell them that there's this thing called jury nullification and that it has this history, you know, some of the times in American history where we've seen allocation, for example, you know, during the Vietnam War, where you know, where you the defendants might have been protesting the war and destroying property, you know, the context of that are times when America is really divided about about the law, or there's, you know, multiple legal regimes coexisting in one in one nation. And, and that's during the time of the Fugitive Slave Act was another time where we do have a national law saying that if you help a slave escape, you could be punished with a fine and prison time. But there are many people in the North, especially that did not agree with that. So I think we're in another moment where we do have competing legal regimes. And so I think that for for those of us who think that there may be people in states who don't agree with what their legislators have done, in terms of criminalizing abortion, that they should know that if they're called to be on a jury, and they're deciding whether to punish someone who has assisted a woman with an abortion, they could think about nullification. And this idea that even though the law on the books says you're not allowed to do it, do they want to punish this person for that act? And and I think that to, to for this nullification idea, to kind of take hold, we need to have more open conversations about why we have nullification and then how it can be misused. And because I think the with the not guilty verdict like there, you know, someone is harmed by that if potentially, and jurors need to think about that. And then they also need to think about if they had a guilty verdict, or what you know, what would that mean? And what would that say? So I think this is a really important time for different social movements, including those in supportive reproduction, right, to think about cases where abortion is criminalized, and what jurors might do in that in those cases.
Jenna Spinelle
So as we as we wrap up here, you and I were chatting before we started recording about our mutual colleague, John Gasil here at Penn State, who studies ways that juries are used outside of the criminal justice system to make decisions about other things and our public lives. And so I wonder how you think about that, like, Can some of the, you know citizen juries about I don't know budgeting or big community level decisions or things that that John and others study? does that tie back at all to jury applications specifically within the legal system that that you study?
Sonali Chakravarti
Yeah, I get asked this question a lot. Like another version is like how can we scale up you know, the benefits of jury decisions that that I write about, and I think there's two aspects that that can be transferred to other other domains that are really important for to have a kind of outcomes and and experience that is that I would like to see and the first is to have time for let's say, citizens and citizens panel or to to really understand the issue. Okay, think the immersive quality of being in a trial is very important for the kind of cognitive work of being a juror um, and you know, and even the fact that you have to like you have to like not be on your phone, you know, during that time, right. Do you have to fully focus your attention on this and you also get a lot of information you know, so I think your train you allowing citizens to go through something like that you bring up a multi day, you know, workshop or use space where they can really be immersed in a topic and hear about it from different perspectives and, and ask questions, I think, is a key part of the decision making process as opposed to something like a survey or voting or you know, things like that. I think something that's much more intensive, deliberative on the front end is important. And and I think the other key thing about what we can learn from juries and legal system is that for them to be important, both for society and for the people that are on them, is that they have to have final decision making power, like they can just be an advisory committee to someone else, because that is frustrating for people that go through it. And when you don't have final decision making power, that intense experience that you've had, you know, almost feels like an insult, which is like, why did you make me sit here for this time, if you're not going to take the advice that we, you know, deliberated on we came, you know, I'm sure you're sure there were probably, you know, heated debates, you know, to get to what their recommendation was, and if you don't take it seriously, you know, the whole thing, I think it loses so much power, if it's just an advisory board. But I think like in some places, participatory budgeting, you know, does give a lay people a final decision making power, right? You have this amount of money, you guys decide how to spend it, and we will respect that. And and I understand when people have like reactions against that, like, oh, no, like, what if they spend it in a bad way. But like, we have reactions to that, with so many other places to win with elected officials with experts, right. And I think we just need to spread out the discretionary power, such that we might have bad decisions from a citizens board. But that's okay. Like the next year, you'll have a different type of, you know, opportunity to make a decision. And, and so, I think that it would bring the advantages of juries outside of the courtroom means to give ordinary people final decision making power.
Jenna Spinelle
Right? We will leave things there. Sonali Chakravarti, thank you so much for joining us today.
Sonali Chakravarti
Thanks, it was a lot of fun.
Chris Beem
So a lot of really interesting and provocative stuff there. I just, I just want to start anyway, with this the argument that juries are not representative. And and she makes a lot of points about that. And, you know, in terms of not having, you know, it's not effectively constitutional insofar as it's often not a jury of one's peers. And, you know, especially when you're talking about people of color, and I mean, I guess I would argue, and I and I'd be interested to hear what you say about this, Candace, but I would argue that there's nothing in the Constitution that says there needs to be any any reason why someone is or is not selected into a jury pool. And so it doesn't have to be driver's license, it doesn't have to be voter rolls. My argument would be that voter rolls is not a bad way to select jurors, because people who are registered to vote have already demonstrated that they have a an engagement with the with theirs, their society with their democracy, and take their responsibilities seriously. And that's the kind of person that we want in the jury pool. So I mean, I you know, if there's a problem there, then I'm not, I would just argue that the place to to address it is not in the jury pool, it's the place to address it as voter registration.
Candis Watts Smith
I think that we're making, I think that there are a series of assumptions being made here, that people who are registered to vote are already kind of demonstrating some sort of, you know, civic responsibility or recognition that they need to be involved. But a couple of things. One, we know that people who are younger, more transient, you know, are not going to be registered to vote because you have to register to vote every single time you move to that is a suggestion that people who don't vote might not who might be doing that as their own political stance, and we can have a whole argument around whether that's a good thing to do or not a good thing to do, but that people aren't in recognition are recognizing are cognizant of the choices that they have, and they don't want to engage. The third thing that comes to mind is a talk that I went to Kim Kimberly Latrice Williams, who wrote a book called How we can win and she's also a ye writer, but she was a part of the team in the ahmaud arbery case. And by team I mean there were There are a lot of people involved in getting that case to national attention to ensuring that the prosecutor was not a person who had ties to the, the murders, so on and so forth. And one of the steps that she mentioned was that there was a Get Out the Vote drive, but not for people to vote, but for people to get in the juror pool. And so people didn't vote because they were in a solidly red space. Why would they, they were never going to get what they wanted. Because we have districting, that allows representatives to select their voters. So why would you register to vote, if you know that you're never going to have an opportunity to select a representative of your choice? So I'm really glad that Sonali brought up these kinds of different possibilities around residency around taxes. I mean, if you pay your taxes, are you not also a responsible citizen. So you know, those are the things that come to mind about the shortcomings of using voter rolls, and connecting voter rolls to jury selection. The other thing is that we also know that when you do that, you also have already said, if you cannot vote, you cannot be on a jury. And maybe people want to have different selection criteria of like, okay, well, maybe you can't vote, but maybe you can be on a jury, for example. So yeah, I just think it's more complicated than that.
Chris Beem
I think it is also worth talking about, you know, you were you said at one point that we're talking about the health of this all reflects on the health of our democracy. And my thought was, yeah, it really reflects on the health of our law, which is not completely the same, but obviously, you know, overlaps significantly. But, you know, when we are in a society where so few cases go to jury, it is, you know, it is almost like, yeah, you have this power, but you're probably not going to use it. And if you have these these first men, are these a Bill of Rights, the Sixth and Seventh Amendment right to a jury trial, but, you know, this tiny percentage of people are actually going to have the opportunity to exercise that. Right. That is a problem. And and to talk about how the jury fits into that is is almost like talking about a tiny sliver when there's this big, looming issue that that is going on addressed.
Candis Watts Smith
Oh, yeah, totally. So I think that what you're saying is that the fact that people do not go to trial is a symptom of a larger problem. Yes, agreed. Yeah. And I think, you know, what you're pointing to is the health of our criminal legal system, people do not go to trial 95% of all, you know, like, people would rather plead out, in part because they know the game at hand, they know that there is a person who come hell or high water needs a guilty verdict, because and this goes back to our previous conversation that is linked to their electoral. Yeah. And so you know, if you are a prosecutor who is motivated by being reelected by a very specific group of people, you're going to want to come down hard on all sorts of things, just so you can say that you want and that you are tough on crime, et cetera, et cetera.
Chris Beem
But also, at some point, we have to question whether or not this is this is legitimate, in terms of a democracy and and also in terms of, you know, the objective of justice. Right. But that raises another issue I wanted to mention, which is, which is her big quit her big push for the the right of the jury to to at least reserve the right to notification. When the jury feels like it the the law that is being applied is unjust. She wants to leave open, I think it's fair to say she wants to leave open the possibility for the jurors to use their experience, as you know, someone who lives in these communities and who sees the police in action, et cetera, to just decide the case in terms of Justice and not in terms of law. And I went through the book I don't know how much of this imeem I might have missed it. But my first thought was the place where there was the most jury nullification was in Jim Crow south, where people were guilty of, you know, crimes against African Americans. And they got off because they had an all white jury, and didn't matter what the law was. And so the idea that we're going to advance this opportunity, particularly in a world in a society right now that is so polarized, and where the rule of law is threatened to a degree that it has not been in a while. I don't think that's a good idea. I just, I think I would much rather have, you know, Tocqueville's idea that, you know, what juries are being schooled in is the the importance of the rule of law, and the importance of a striving for an objective application of the law, justice is blind, all that, I feel like that is what we should be looking for in juries, especially at this moment.
Candis Watts Smith
So Sonali is not innovating here. She is just saying that this possibility exist, and it always has existed. And we should probably know that this is a thing that a jury can do. i There are several cases of which jury jurors do not know fully what their choices were. And they gave bad choices, because they thought that they had to choose within a particular set of constraints. And turns out that that just the instruction was not clear or wrong. And they ended up doing something wrong. So and things that they wish they could have, can they wish they could have done differently if they knew that they had a different choice? Right? Okay, why am I saying this? I'm saying this, because what I think that Sonali is pointing to is that there are points in time, moments in history laws on the books that are unjust. And nobody can really, I mean, not nobody, because there are plenty of people who think that the way that the world works is just fine. That there is actually another possibility that maybe jurors, people, Americans might feel more empowered, if they knew that there actually was a different possibility, another choice now, whether they actually lean into that that's a totally different thing. But to know that, you know, what, what if I walked in here, and I found that it just was like, really bad? That, you know, I had I know, I maybe there's a possibility of a of a different outcome. But I mean, most people, as we see stay within the bounds. So I my sense is that what she's really calling for, is a broader knowledge base, for Americans to know what is possible, of being a juror. The other thing I think, that comes to mind, and she says this herself is that there is a split between morality and legality. There are a lot of things that are perfectly legal, that are wrong. Sure. That's how we have so many police problems, for example. And the case that she cares about right now is abortion, and prosecuting people who help others to get what is otherwise a safe procedure, and in some cases, safer to do that than to continue on with the pregnancy. So you know, my sense is, I hear you, I hear where you're coming from, that the rule of law is being threatened that there's so much polarization that would if people did lean into this more than like, we would just be willy nilly all over the place. But we also have to consider that this is that, that these things have to happen in a group. Right? The examples that she gives our the jury as a body was, you know, decided, no, we're not doing this. It wasn't that one person went willy nilly and decided to disrupt the entire process.
Chris Beem
I think the fact that that we've had this kind of conversation just speaks to the importance of this topic, and speaks to the fact that she is absolutely right that we have neglected the idea of the jury as a manifestation of enfranchisement and empowerment among the citizenry. And we, people who care about democracy need to think about this in terms of how we, how we practice law and how we how our justice system says how our justice system operates. So kudos to her. So for Democracy Works, I'm Chris Beem.
Candis Watts Smith
I'm Candis Watts Smith. Thanks for listening.