I was recently asked what issues I find to be especially perplexing. The correct answer is "lots of them." Here, though, is one of the most difficult issues for me: mandatory jury duty.
The voluntaryist in me cringes at mandating that any peaceful person do anything. So a significant part of me opposes mandatory jury duty. But I’m hesitant (in this state-infested world of ours) to come out strongly against mandatory jury duty. I’m torn.
The reason for my hesitancy is that juries bring into courts of law the community’s sense of right and wrong – and give to communities (through juries) the power to protect defendants against arbitrary declarations of ‘law’ by legislatures and executives.
In short, jury nullification is a wonderful institution; it’s vital to a free society.
Like every other human institution, it isn’t perfect. Sometimes, perhaps often, it’s used to free truly culpable creeps from justified punishment. (This was likely true in the O. J. Simpson murder trial.) But in my view, this imperfection is a small price to pay for an institution that lets ordinary men and women, with their own sense of right and wrong developed from everyday life, refuse to punish Jones even if Jones unquestionably violated express commandments of the legislature or executive.
But what would happen to the composition of juries if jury duty weren’t mandatory? I fear that a class of professional jurors would emerge – who would surely be better at fact-finding than current juries but also less likely to bring with them into the courtroom the community’s (as opposed to the government’s) understanding of the law.
If anyone proposes a plausible way to end mandatory jury service while at the same time ensuring that juries continue to bring into the courtroom an understanding of – and a dedication to – the community’s sense of the law, I’ll be most relieved.