Thursday, August 25, 2005

Roadblocks to Jury Reform

Jury reform tends to be a hard sell. One reason may be that jury reformers are interested in procedural issues, which are about as exciting to the general public as soda crackers. We can get all hot and bothered about penalties for drunk drivers, legalizing (or not) medical marijuana, or the death penalty. But the procedures through which those laws are enforced cannot be expected to grab the public's attention in the same way. After all, everyone knows what the death penalty is, but how many non-lawyers know what death qualification is?

Another is that the general public does not learn about the jury system's value in high school or college, and so they can't form a strong vision about what the jury ought to do or how it ought to work. If we don't understand the value of the jury system, we are unlikely to preserve it, participate in it, or seek to improve upon it. The roadblock to jury reform is apathy.

The media has so long portrayed the jury as a pack of village idiots that it seems far-fetched to expect the general public to protect the role of juries or to (heaven forfend!) expand upon that role. The jury system is far from perfect. That shouldn't be a criticism; no institution of our government has come close to that standard. The fact that juries are not perfect is hardly just criticism. We need to look at how good juries are, compared to other governmental entities, and seek appropriate reforms to address their shortcomings and remove the shackles that prevent their doing an even better job than at present.

Bar association efforts to publicize the importance of the jury system have become popular in legal circles, but largely seem to be self-congratulatory and have no discernable impact on the general public's attitudes. In fact, the only thing that really seems to make a difference is serving on a jury: something that many Americans stubbornly refuse to do. The American Legislative Exchange Counsel, a conservative think tank, has proposed a Jury Patriotism Act to address some of these problems.

As noble as the motive may be, the act seems doomed to failure. It is doubtful that legislatures will be willing to impose sanctions upon employers who prevent their employees from attending jury duty. Nor is it possible, as the act posits, to punish jurors who fail to respond to jury summonses, because there is no way at present of proving that those individuals personally received such summonses. The cost of sending them jury summonses by certified mail or having them delivered by constables is prohibitive.

This brings me back to the point I've made earlier: unless we make the jury system a part of all public school curricula, we cannot change the widespread public image of the jury system and jury duty. And that requires making education on the jury system a part of any standardized testing schemata.

The hidden concern here is that students will somehow become indoctrinated to, for instance, make them more likely to vote to convict in criminal cases. If the State designs the curriculum, how fair and balanced can it be? Thus, as essential as making the jury system part of the curriculum is, the challenge to have that curriculum to be designed by neutral scholars, and not partisan bureaucrats, is one that must be met. Only then can we expect higher juror turnouts, and can we have a public that understands the value or the dangers posed by any proposed jury reforms.


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