The Most Popular Criminal Justice Reform in History

Ladies and gentlemen of the jury, you are excused. Permanently.

I got a federal jury questionnaire in the mail last week.

Well, actually I got the link to the questionnaire. The letter inside the envelope also contained a QR code, which could be used to access the survey on a mobile device, but I’m from the laptop generation.

The first questions covered assorted background topics like my occupation and whether I had ever worked in government or served in the armed forces or committed a felony. The next batch then went through assorted reasons why a person might encounter challenges if called upon to perform jury service, such as having a disability or being afflicted with certain medical conditions.

I wrote that the responsibilities of my job would make it difficult for me to be away for the amount of time that could be required for jury service, which is true. But, I also tagged on another reason, declaring myself to be “philosophically opposed to jury trials.”

I can imagine my survey response getting forwarded around the offices of court clerks in Wilmington under the subject line “never got this one before!” In fact, I can even envision a scenario where I will now be deliberately picked to be in a jury pool because the court takes my response as a provocation, and now I end up getting singled out and pegged as somebody who was just trying to come up with any excuse possible to avoid jury duty.

And I’m not going to lie. I really don’t want to do it. So, apologies if you’re one of those people who think that embracing the call to jury service is part of being a patriotic American or something.

But, I wasn’t lying on my survey either. I don’t think jury service should be part of being an American, for any Americans, whether they want to serve or not.

I may have mentioned once or twice that I wrote a book, “The Anti-Partisan Manifesto,” and that many of my articles are either tweaked versions of content that appears in the book or are at least informed by the ideas in it. Well, the book is kind of mentally mapped out in my brain, and I have a general idea of which sections would be ideal for adaptation into posts and which parts wouldn’t translate as well.

And the “Manifesto” actually does recommend the elimination of jury trials. It’s in a chapter where numerous amendments to the Constitution are proposed, in fact.

But, it wasn’t a proposal that I was ever planning on turning into an article. It didn’t seem like a detailed enough idea to warrant a whole article. Maybe as a bullet point in a piece about comprehensive criminal justice reform, which I cover in a longer section of the book.

But fate and the United States District Court for Delaware had other designs. So, ok, let’s talk about why we should junk juries.

The questionnaire limited me to 250-character responses, or I would have elaborated that I favor repeal of the clauses in Article III, Section 2 of the Constitution and the Sixth Amendment that establish jury trials as the designated mechanism for criminal trials. I propose replacing juries with professional magistrates who would render verdicts in all criminal cases.

This model of jurisprudence already exists, and it’s generally available to defendants who opt for it. It’s called a bench trial. I propose making bench trials mandatory.

There are several, pragmatic purposes for making this change that have nothing to do with anti-partisanism. First, trained, professional judges are likely to discern with the most accuracy whether a defendant is guilty and to what degree. Second, cases handled by specialized magistrates will probably lead to much quicker verdicts than jury-involved proceedings, thus more effectively delivering on defendants’ right to a speedy trial. Third, speedier trials will reduce costs. Fourth, a mandatory bench trial system would also function as a judicial jobs program, as many new judges and courts would be needed, along with support staff. Fifth, Americans would never get called for jury duty again, which would probably be one of the most popular reforms of all time.

The anti-partisan rationale for eliminating the jury system, however, is more basic and familiar: eliminating flashpoints for societal conflict wherever they exist. The reality is that high-profile, criminal cases often become highly politicized, and, typically, neither conservative nor liberal observers are concerned about fact-based justice. What each side wants is an outcome to the trial that will validate its ideological views and repudiate the views of the other side.

During such trials, the clash between the two sides plays out in the press, online and in the streets, in the form of demonstrations that aren’t always peaceful. In these types of cases, the prolonged periods of time between the filing of charges and the announcement of a verdict guarantees that the tension will last for months or longer, reigniting with each new development or procedural step in the trial.

Thus, ending jury trials would end what can become occasions for drawn-out, social discord. Quicker verdicts would mean less time for keyboard warriors on either side to weaponize memes and hashtags, as they wage their online wars. There will also be fewer news cycles for the media to spend hyperventilating about every aspect of a trial. And the likelihood of violence would be reduced because impassioned observers on both sides would have the expectation of a rapid resolution to the case, and they would also have a better idea of its expected time frame.

Obviously, this new court system would have to operate with absolute transparency. The Constitution provides for jury trials because people in the 18th-century wisely feared the possibility of justice being dispensed by powerful people behind closed doors. That’s still a legitimate worry today. So, if we’re going to propose reforms that are among the most far-reaching in American history, we must be prepared to guarantee an unprecedented level of openness in return.

Portions of this post have been adapted from my book The Anti-Partisan Manifesto: How Parties and Partisanism Divide America and How to Shut Them Down. Buy the book here. For the time being, it is only available digitally. To read, download the Kindle app to your phone, your iPad or tablet, your Kindle device or your computer.

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