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Can You Fight Mass Incarceration And Dodge Jury Duty?

Can You Fight Mass Incarceration And Dodge Jury Duty?

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Anyone who has ever done work combating mass incarceration has most likely been approached by family members and friends asking what they can do to join the fight. “It’s just so awful,” they might say, “I really want to do something but I don’t know how to help.” I believe that they are being sincere, but these are the same people who, moments later, will brag about the sophisticated maneuver they pulled to get out of jury duty. Jury duty is the opportunity that the government gives us to participate in the legal system, and put a check on their power over individuals. It isn’t community service, or charity; it’s part of the structure. Why, when given this chance, do people throw it away? When I gently suggest that one thing a person can do is to serve on a jury, and be skeptical of the way the state brings cases, these well intended friends invariably laugh uncomfortably and say some version of, “Jury duty? I don’t think so.”

I get it: People are busy. No one wants to be uprooted from their daily life only to have a government bureaucracy tell them what to do and where to go. But neither do the thousands of people who are arrested and taken from their lives every day. And at a time when information and entertainment are available with attention-grabbing alacrity, court is slow, plodding, and at times pretty dull.

Try Googling “why you shouldn’t try to get out of jury duty” and you’ll find very little about why one should serve, but you will find dozens of articles and websites, all variations of “Getting Out of Jury Service.” (That particular site begins by extolling the importance of jury service and then offering pieces of advice like this: “While we all have biases, if you can indicate that yours is one that you will have a hard time overcoming for the sake of the trial, you are likely to be excused.”)

It’s become a punchline. On a famous episode of “30 Rock,” Liz Lemon fails to avoid jury service, even after dressing as Princess Leia and explaining that she shouldn’t have to serve on a jury given that she “is a hologram.” One defense attorney told the New York Post that his most memorable jury-dodger was an aspiring novelist who, in trying to get himself recused from a police brutality case, said that “he did not accept the idea of ‘causation’ for emotional damages,” said the attorney. “He explained, at some length, the nature of emotional life and its relationship to internal and external factors.” He was excused, and later the attorneys realized they had just met Jonathan Franzen.

Another writer who wriggled out of jury duty was plagued by guilt afterward. “I fled the court holding a little diploma for having finished jury service,” wrote Peter Mehlman in the Los Angeles Times. “But instead of feeling ecstatic, I felt like garbage. I had gamed a system I believed in my whole life. Driving home, I saw four police cars surrounding three kids facing a wall, hands cuffed behind their backs. I’d be up for jury duty again in 12 months.”

“I reported to jury duty in Oakland one time, fully intending to dodge it,” said acaller to an NPR show. “And the judge said something that changed my mind, and I stuck around. And what he said was he knew that people tried to avoid jury duty and he said, look, if everyone who could avoid it avoided it, we’d end up with a system not of trial by jury but rather of trial by people who weren’t smart enough to avoid jury duty.”

The judge isn’t necessarily correct: Getting out of jury service is not a question of intelligence. For some, it’s a question of necessity, as wealthier salaried professionals generally will not lose out on wages for serving on a jury, but many lower-income hourly workers will. For many, especially those with irregular hours, it’s a question of child care, or other responsibilities that cannot easily be transferred. But from what I have observed in courtrooms, it is primarily a question of entitlement. Wealthier people, in my experience, seem to value their own time more, and civic duty less. They are more likely to believe that their own unique set of circumstances merit special exemptions.

But the importance of jury service cannot be overstated. It has been developing for about a thousand years, was enshrined in Magna Carta, and has been hard-fought for many Americans, especially Black Americans, who today find themselves systematically excluded from juries by prosecutors who believe them more likely to acquit.

The importance of juries is not academic. People accused of crimes feel it every step of the process. Even though most cases end in pleas, it is the threat of trial—the anticipation of what a jury may or may not decide—that anchors plea negotiations. Reliably critical juries, like those I encountered as a public defender in the Bronx, help hold prosecutors to their burden to prove every element of every charge beyond a reasonable doubt. When I would sit down with prosecutors to negotiate, I would point out that jurors in the Bronx do not automatically believe every word police witnesses utter, so they will need to do more than put a cop on the stand to win their case. This anticipated juror scrutiny did as much as any skillful lawyering to get reasonable offers for my clients.

The best argument I have read against jury duty came from a man who served on a jury that ultimately sent a first-time offender with no history of violence to federal prison on drug charges. The man was sentenced to 40 years but died in prison less than a year later. The juror, Paul St. Louis, said that he had trusted the judge’s instruction not to consider the potential sentence when handing down a verdict. “That ‘civic duty’ I was so sure of? Today, I feel like a pawn used to send a man down a path that led to his unjustified death,” he wrote in a Washington Post opinion piece. “I thought the system would break down if we all tried to get out of jury duty. Now I know the system is already broken.”

At the time, he was not aware of the concept of jury nullification, when a jury believes someone is guilty but chooses to acquit because the potential punishment is too harsh, or because jurors are opposed to the law itself. “If I could go back in time,” he wrote, “I would nullify.”

This, then, is my answer to the next person who asks for one thing they can do to help combat mass incarceration. It isn’t sufficient, but it is crucial: serve, and nullify.

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