The unspoken crime of the Peterson trial
Is Scott Peterson guilty? He probably is, but I don't know for sure. What I do know is that the legal system as a whole is guilty of a crime: the imprisonment and enslavement of 9 12 jurors. These jurors have been taken from their normal lives and sequestered in a hotel like prisoners, and have been forced to accept a compensation lower than they otherwise would have accepted for such a job, and to do a job that they otherwise wouldn't have done. Their entire lives have been put on hold for these last several months.
For those of you who don't know precisely what "sequestered" means, it is probably worse than you imagine. Not only do they have no access to any form of news, but they are also separated from their families:
these people will know and understand that until they get a verdict, they're not going to see their families. They're not going to see their jobs. They're not going to have any contact until they make a decisionYes, they're separated from their family and friends -- for however long it takes to render a verdict, possibly weeks or even months. They're separated from their jobs and co-workers. In short, they are separated from their lives. In reality, they have been enslaved, forced to work in a job they otherwise wouldn't work in for a pay they wouldn't otherwise work for; imprisoned, trapped in a hotel for months; and isolated from the rest of society, effectively put in solitary confinement.
What I propose is that we treat the job of being a juror just like (almost) any other job: it should be something that people voluntarily decide to do and train for. There should be professional jurors, and of course there would be a free market in them (competition among jurors). It could be like a branch of law-school. And, of course, there would have to be more of a free market in their compensation. I'd propose that this be used as a springboard for the privatization of the entire legal system.
Note: Thanks to those on LiveJournal who pointed out that it's 12, not 9, jurrors (I was thinking of the USSC). Also thanks to those who pointed out that they're sequestered from this point on (during deliberations), and weren't sequestered for the entire trial. My point is still the same, however. I'd also note that the initial roundup of some 500 people to be interviewed constitutes kidnapping and essentially temporary enslavement.
Comments (15)
"There should be professional jurors, and of course there would be a free market in them (competition among jurors)."
Hmm, I am not sure if that is true. I believe there would be arbiters, but not necessarily jurors. If I sign a contract with someone and agree to arbitration in case of a dispute, why would I want to complicate things by having 10 or so jurors? Not only that, but an entire team of professional jurors sounds rather expensive.
No, I think that juries are the sole creation of the government in order to give the illusion of justice, and would probably not have much place in a society of pure private property contractualism.
Published: November 9, 2004 11:17 PM
Steven,
Good point. I'm not sure how much the rise of "juries" corresponds with the rise of Democracy, but I'd guess they're tightly linked. After all, a "jury" is another Democratic element, trying to legitimize the idea of democracy.
I don't think, however, that we can know exactly how the free market would handle things (after all, unlike the socialists, us Austro-libertarians aren't omniscient). Would it think separating the moderating position (current judge) from the deciding position (the juries) worth the extra cost? Would it consider having 9 members worth it? I don't know; I'd imagine different courts would try different things, and the most successful ones would gain market share. Other's would probably adopt.
Published: November 9, 2004 11:23 PM
"Good point. I'm not sure how much the rise of "juries" corresponds with the rise of Democracy, but I'd guess they're tightly linked. After all, a "jury" is another Democratic element, trying to legitimize the idea of democracy."
Indeed. Juries (in public courts) are really based on the same horrible ideal that "representative" democracy is based on: extreme egalitarianism. Instead of allowing the free market to produce decision makers that best fulfill the most urgent wants of consumers, the government basically says that regardless of one's intelligence, knowledge or expertise one is fit to and in fact should render a decision in someone else's trial. To top it off, we are supposed to believe that these decisions are "just."
Published: November 9, 2004 11:51 PM
As a lawyer, I am often confounded by people who refuse to examine any possible alternatives to a jury trial, because they "want their day in Court".
At this juncture, I say to them: "Do you really want your whole future determined by 12 people who are TOO STUPID to get out of jury service?"
That usually fixes 'em.
Published: November 10, 2004 12:58 AM
Juries are no necessary element for a democracy. Only the separation and independence of the judicial power from the other two powers is kind of needed.
For example, here in Germany, a representative democracy, we use lay judges in certain criminal cases. Usually there are two lay judges and only one professional judge. This makes sure that the opinions written by the pro judge sound like: "Although the defendant fulfilled all requirements to being punished as a thief, he was not to be convicted." So the state's attorney knows exactly when to go on appeal.
Published: November 10, 2004 2:54 AM
I understand the philosophical objection to being involuntarily pressed into Jury “duty�, however, I don’t believe that there is anything inherently wrong with a judicial system where 12 of your “peers� ultimately decide your fate.
In democratic legislatures where populist, but unjust, laws are passed with alarming frequency, I see the jury system as one of the few concessions allowed by the state where there is a least potential for justice to prevail.
I am thinking of such laws as mandatory sentencing, or laws that create a crime where no injury was done to another person. I don’t want to open an argument as to the appropriateness of any particular laws; rather I would encourage the reader to imagine themselves on a jury, called to determine the fate of another person.
Take a hypothetical situation where it was clear to you that the accused had broken the law. However, you know if found guilty, the mandated penalty is grossly inappropriate for the crime.
The possible examples are endless; a person in State A is allowed to carry a handgun, he crosses 1 mile into state B to purchase a bottle of milk for his child. The accused is apprehended, not for stealing the milk, or threatening anyone with the handgun, but for illegal possession of a firearm. What if you learned the mandatory sentence was 5 years imprisonment?
In a different example, what would you do if you served on a jury, and the crime had a victim? For example, a person walks into a supermarket and hides a tin of beans under his jacket and walks out the door. Clearly a crime was committed, there was a victim, and the perpetrator should be punished. What if you learned that this crime was his 3rd offence (his 3rd tin of beans), and there was a mandatory 20 year imprisonment imposed by the State for a 3rd offence?
In my State, the jury would be instructed that the only determination it could make was to decide the perpetrators guilt or otherwise. Further, it is not lawful for the jury to consider the appropriateness of the mandated sentence.
I’m not sure the decision you would make, for me, regardless of the weight of evidence that proved his guilt, and irrespective of the requirement that I disregard the severity of the mandatory evidence, I would say “not guilty�.
What about the supermarket owner whose property was stolen?
Well, if I were on that jury, I would gladly purchase the supermarket owner a truckload of beans to make up for his loss, rather than to have to think about the poor soul that I imprisoned for 20 years.
An unjust law is not law.
What is “just�? What is a “just� penalty? For me, only test I could apply is what I (honestly) believe the appropriate punishment would be for me if I were the person found guilty of that crime.
I respect your right not to be compulsorily forced to perform your jury “duty�, however I also ask you to consider the possibility that, if you choose to attend nevertheless, you might be able to put some of your insight to good use.
In my mind, it is only when juries are made up of “rule followers� (those not concerned by justice), that juries are pointless.
Published: November 10, 2004 6:14 AM
The thing to do if you get a jury summons is to look for the nearest thrash bin. Since it isn't registered mail, you haven't got it. Who, me?
Published: November 10, 2004 6:34 AM
I look at jury duty as an opportunity to inject some measure of decency into the "system".
I'm there to bring my entire baggage of preconceptions with me. I will examine the evidence, I will ask questions. I will likely get kicked off, but if not then at least one of the votes on the jury will be based on either guilt without doubt, or no conviction. None of this "following the judges instructions regardless" crap.
On the other hand, I have only been summoned twice in my life, both times I was not selected. The most interesting thing was watching as a man who openly answered the jury-stacking questions with "I think lawyers are lying theives" and the like was NOT kicked off. I think they respected his honesty (frightening thought). But it was not a criminal case, it was a two-way (at least) suite between a contractor and dissatisfied customer.
Published: November 10, 2004 6:50 AM
From Ostrowski's outstanding summary of the case against juries: "Juries are supposed to check the power of the government and government judges. Yet, the jurors themselves are hauled into court by those same judges and remain under their continual and coercive control throughout the trial. They are met at the courthouse door by a squadron of court officers who proceed to subject them to a humiliating search. (When did Americans stop caring about their government treating them like common criminals?) The entire experience of jurors is one of subjugation to the very court they are supposed to counterbalance. Every detail of the trial is controlled by the judge. The jurors must sit in silence and awe from their always lower perch off to the side, a scenario reminiscent of the public school classroom. When the judge tells them, near the end of their temporary incarceration, that they must follow his instructions on the law, they can only think to themselves, "Why not? We've had to follow all your other asinine orders for two weeks!" Stockholm Syndrome sets in. They begin to identify with their kidnappers."
Published: November 10, 2004 7:17 AM
Imagine if there are 11 jurors on one side, 1 on the other.
Sequestered away from their family and devoid of any outside contact, there would be unbelievable pressure put on that one juror to abandon his position (and morals, principles, beliefs, etc...) to conform with the group. Groupthink starts to set in.
Besides all the coercion, groupthink is another highly negative aspect of juries.
I have a question: With free-market juries and/or arbitraters, what would prevent a wealthy party from basically buying a verdict in their favor?
Maybe the real question is: What makes me so sure that this doesn't already take place and that it would be any more prevalent in a free-market system?
Published: November 10, 2004 12:56 PM
"I have a question: With free-market juries and/or arbitraters, what would prevent a wealthy party from basically buying a verdict in their favor?"
Arbiters that were known to always side with a particular group or succumbed to bribery would quickly go out of business. Why would I sign a contract with someone and agree to arbitration with a potentially heavily biased or corrupt arbiter?
Perhaps for some reason I would sign such a contract in a situation where the potential rewards reaped from the contract outweighed my disincentive to sign due to the potentially corrupt arbitration. But this factor would be included in my analysis of the contract, and would affect the chances of me signing it i.e. the risk vs. the reward.
In any event, without a doubt, arbitration firms with a reputation for what the free market determined to be most objective would flourish, and their brand names would become well known.
Published: November 10, 2004 1:54 PM
Thanks, Steven.
I came to essentially the same conclusion right after I posted the question.
It sounds to me that one type of business that would flourish should more and more government monopolies be privatized would be the third-party "reputation" (for lack of a better term) agencies like the Better Business Bureau (BBB).
These agencies could, if they were popular enough, provide stamps of approval to companies that were willing to run themselves to the standards of the agency and pay for that privilege.
The reputation and trustworthiness of these third-party agencies would then very much depend upon their objectivity, the standards they set, and how well they ensure that their members maintain these standards.
Of course, other agencies, like "Consumer Reports" would flourish by simply providing objective quality ratings of products/services/companies.
Published: November 10, 2004 2:26 PM
Ernie Raster has raised a salient point regarding the power of the jury to bring in a finding of "not guilty" where, for want of a better description, the 12 Good Men and True consider that the law sucks.
This may be the case, but as jurors are only there to make a determination of fact (and not law), any finding by the jury that is not in keeping with a reasonable finding of the facts is known as "perverse", and the prosecution will appeal to a higher court, and invariably succeed.
Jurors who take the law into their own hands will be overruled on appeal.
Ernie raises a valid point regarding a juror's conscience dictating the outcome.
As an example, I am strenuously opposed to the death penalty, because where jurors essentially have the power of life and death in their hands, and all the emotional baggage that entails, they are much less likely to convict in a capital case, where there is a prospect of a death penalty. (In my jurisdiction, penalty is determined by the Court, not the jury).
This would have the inevitable result of persons who SHOULD be found guilty being acquitted.
The jury system is, I think, akin to Democracy. It's a terrible system, but it's the best one we have!
Published: November 10, 2004 5:40 PM
I've read that in Somalia, where there is no strong central government at this time, arbitration is the standard means of solving legal disputes. It apparently works quite well as a judicial system.
Published: November 10, 2004 6:18 PM
"Somalia" doesn't exist. It's a fabrication of groups like the UN that draw lines on maps and decide to call it a country. There's a group recognised as the "government of Somalia", but it really doesn't control any geographical area (the new President, Abdullah Yusuf, was in Kenya for his swearing in, not "Somalia"). The area you call "Somalia" is in reality a large number of fairly independent non-recognised countries (The Republic of Somaliland, Awdal, etc.) It's actually doing rather well as a result (it's the only place in Africa with good cell service!). Of course the new dictator, Yusuf, wants foreign troops to come and impose "control" for him. Maybe he'll succeed in reverting the place to the typical statist African hell-hole.
Published: November 11, 2004 5:28 AM