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More People Should Get Jury Duty

A trial by a jury of your peers is a foundational American right. To really reform the American justice system, we have to make the jury the star of the show.

Your odds of serving on a jury are low. That’s a problem. Our collective distance from the criminal justice system has significant drawbacks. Thankfully, there are fixes to help revive the capacity of the jury system to keep prosecutors accountable, familiarize us with our communities and the laws that govern them, and ensure defendants have access to a trial by a jury of their peers.

It’s no secret that our criminal justice system is flawed. Decade after decade, there is a new theory of reform that sweeps the nation (or at least parts of it) and, yet, things never seem to improve for long. That is because everyday folks, through their role as jurors, have played a marginal role for far too long.

For several decades, reformers allocated most of the discretion in the system to judges. Under the indeterminate sentencing scheme, judges used their expertise to set sentences within a broad range based on the individual characteristics of the defendant. But it turns out judges weren’t as impartial as hoped, rehabilitation wasn’t as successful as envisioned, and, occasionally, parole boards were more lenient than anticipated. So reformers looked for a new actor in the criminal justice system to play the leading role: They found prosecutors; and they ditched indeterminate sentencing.

In recent years, prosecutors have become more and more influential in shaping our criminal justice system. In the switch to a determinate sentencing scheme, judges lost much of their ability to individually tailor sentences. Instead, prosecutors have become the primary decision makers; the charges they bring against a defendant are now the most important factor to how a case will move through the system. The severity and number of charges shaped everything from the odds of a defendant taking a plea deal (most do) to the time a defendant would serve if convicted at trial. Judges have very few means to oversee these decisions. So it’s on the public to make sure prosecutors keep the community’s interests in mind.

In many cases, the public has failed on that front. It’s true that the public has the chance to exercise some oversight power by deciding whom to elect to serve as their community’s chief prosecutor: the district attorney. But that vote is too isolated of a participatory act; once every four years, the public votes on vague campaign promises. In the interim, only a handful of us get to really see how things work (or at least a good approximation) by serving as jurors.

A census of jury service across all states makes clear that, for most of us, jury duty is like Halley’s comet, on the horizon, but still very far away. The vast majority of criminal proceedings occur at the state level. Yet, only 1.5 million people are eventually selected to serve on a jury in a state court each year, based on the analysis of the National Center for State Courts and the FiveThirtyEight blog. Fewer than 100,000 people a year serve on a federal jury. And, even when we’re finally selected, many of us try our hardest to evade this civic responsibility. In California, nearly a quarter of all those called for jury service fail to appear.

Without seeing the criminal process play out in person, many of us rely on the press and popular media to tell us about the state of the criminal justice system. But no article in the Wall Street Journal or the New York Times can give you a true sense of the power exercised by prosecutors, the limited but consequential role of judges, and the importance of working with other jurors to think about what justice truly means for your community.

Few people recognize the power jurors have at their disposal. Not only are they deciding the fate of one of their neighbors, they may also opt to nullify. Nullification occurs when a jury returns a verdict of “Not Guilty” though they believe the prosecution met their burden to prove beyond a reasonable doubt that the defendant was guilty of the charged violation. Jury nullification sends a power signal that 12 community members believe that a law was immoral or wrongly applied to the defendant on trial.

These are just the immediate powers of a jury. Jurors also leave their service with invaluable knowledge that they can share with the rest of the community: They can report on the quality of the performance of their district attorney; they can evaluate the performance of law enforcement involved in the proceeding; and, they can analyze the effectiveness of the criminal justice system as a whole. Does it appear to be working smoothly? Are the facilities antiquated? Are victims being afforded sufficient respect and attention? Are law enforcement agents in tune with community values and concerns?

Jury service ought to become more regular for more Americans. We could also use some first-hand exposure to our criminal justice system as well as an excuse to work out our civic muscles, which shrink in between elections. Here are a few suggestions for improving jury participation rates.

First, jurors ought to receive better compensation. In several states, the government provides jurors with as little as $10 per hour. In most states, employers aren’t required to compensate their employees serving as jurors. No one should incur financial punishment for performing a key civic duty.

Second, courts should increase the number of alternates selected for jury duty. Courts have broad discretion over the number of alternates they can call to serve in the event that a selected juror has to bow out. By increasing the number of alternates, who would also attend trial, courts can increase the exposure of community members to the criminal justice system.

Third, courts and state legislatures should broaden the pool of potential jurors. In Florida, the only mandatory source that courts must use when selecting jurors is Driver’s license rolls. Comparatively, in Colorado, courts must consider voter registration lists, driver’s license rolls, and non-driver ID card lists; they can also consult tax rolls, utility rolls, city/county directories, and motor vehicle registration. Courts should follow Colorado’s list to increase the odds of folks from more varied life experiences serving as jurors.

These are three simple steps to bring jurors out of the shadows of our criminal justice system. It’s time we respect the star role that jurors were meant to play, rather than excessively defer to prosecutors to define justice. Obviously, these steps won’t shift any discretion from prosecutors to jurors, but they should help restore the idea of jury duty as a core tenet of civic responsibility.

Kevin Frazier is a fellow at the Miller Institute for Global Challenges and the Law at the U.C. Berkeley School of Law.

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