At My Real Job: DNA and the Death Penalty
This month’s Cato Unbound is especially interesting to me because it discusses how to integrate new facts into an old public policy debate: Now that we (sometimes) have DNA evidence, what does it tell us about our capital punishment system?
One answer, of course, is that it doesn’t tell us anything. If you have a moral objection to the death penalty, adding certainty to a guilty verdict won’t move you at all. Or, if you’ve said all along that you can tolerate a given level of erroneous executions, you shouldn’t be terribly upset when a few of them are identified — to you, the death penalty is still very much doing its job and still very much worth the price. As long as there aren’t too many of them, the system is working.
But in between these two camps of purists, there’s still a lot of room for debate. In the cases where it’s available, DNA evidence might show that we are making an unacceptably high number of mistakes. And this might lead to inferences about the other cases, the ones where DNA isn’t available.[1] There are reasons to question how solid these inferences are, but we might still learn some lessons about improving the criminal justice system. Would we still want a death penalty? Now that’s an interesting question.
Anyway, I’d suggest you all check it out. Feel free to comment below.
[1] Note that DNA-to-capital-punishment is a thorny issue in ways that, say, DNA-to-rape-conviction is not. As opposed to capital cases, DNA is very often present for rapes, and anyway, absolutely no one is arguing that rape is morally acceptable.
Erik, here’s something messed up: When you expand this post, the hyperlink appears in the first line.
I put the hyperlink in the first line so that you wouldn’t have to expand the post. Also, the italics don’t show in the automatically truncated version.
I don’t think I care for automatic truncation.
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Word.Report
If we take out auto-truncation, to make this work we’ll need people to put “more” tags earlier in their posts. But I can turn it off.Report
Killed auto-truncation. Will have a post up shortly on how to add “more” tags (and where) as well as the new image format.Report
The effect of TV (especially bullshit shows like CSI) on the jury system, to think that “scientific evidence” is always straightforward.
The effect of TV/media in creating the fiction that “DNA Evidence” is the perfect evidence, always reliable, always reasonable, always present and able to prove guilt/innocence over anything else. If they found your DNA at a crime scene, you’re guilty… if they SAY they found your DNA at a crime scene, no matter how many ways there are to plant DNA on a scene, no matter how many innocent ways DNA gets spread around.
The worse problem is the reliance on probably the most inaccurate and easily manipulated evidence of all, eyewitness testimony. Somehow, CATO never seems to care about that one when judges refuse to allow expert testimony on the matter…Report
Did you read the lead essay? You might find it interesting.Report
DNA evidence would not have helped Kathryn Johnston, or William Wolford, or Michael II Nida, or any number of innocent folks who got the Death Penalty.
It seems to me that the emphasis really ought to be put much earlier in the process, if we truly want to keep innocents from getting it.Report
Quite so. Professor Garrett makes this point with Troy Davis, too. The DNA just wasn’t there for him.
DNA is a very narrow beam of light shining into a very dark room. It will illuminate some of the room, but certainly not all of it. Is the illuminated sample representative? How would we know? If it is representative, what do we do? And if not?
These are very big questions. For some people, the answers won’t matter. For others, the answers are very important.Report
If the death penalty cases are as unreliable as they seem to be, doesn’t that also raise questions about the wrongful conviction rate for lesser offenses? Does anyone know about good sources on this? It seems like that would be a major problem–after all, getting 5 years on the basis of a confused witness would be devastating, albeit preferable to death.Report
Here’s something to chew on:
Person A has a confused witness and some weird DNA evidence stuff going on and gets life without possibility of parole
Person B has a confused witness and some weird DNA evidence stuff going on and gets put on death row
Which one of these people is most likely to get a retrial? Which one of these people is most likely to have a pro bono lawyer show up and devote weeks of work on behalf of the guy? Which of these people is likely to get a web page started by some college students devoted to proving innocence?
As such, which of these two is more likely to see the sun again?Report
It certainly does. The death penalty focuses the question a bit for two reasons. First, we can’t compensate the wrongfully executed. And second, many people would like to do away with capital punishment entirely.
But does the new evidence help or hurt the opponents of the death penalty? That turns out to be a very complicated question.Report
There is already overwhelming evidence to support a conclusion that the death penalty, in the US, is disproportionately applied on the basis of race. Duane Buck is but one textbook example.
There is also overwhelming evidence to support a conclusion that the death penalty is applied disproportionately to those who are poor and cannot afford a high-powered lawyer, instead having to make do with a public defender. The number of cases which have been revisited due to ineffective counsel is proof enough of this.
There is also evidence in any number of death penalty cases of police engaging in witness tampering, especially in cases from the 1960s and 1970s in southern states.
Do we really need MORE evidence to support concluding that the death penalty is wrongly conducted in this country? If so, DNA evidence is a “little bit more.” The existence of death penalty exonerations due to DNA evidence is one more log on a rather large bonfire.Report
It’s funny–the death penalty is applied even more unevenly on the basis of sex. And speaking of Duane Buck, the psychologist who testified during his trial that blacks have a higher recidivism rate than whites also testified that men have a higher recidivism rate than women.
Why is the race thing an issue, but not the sex thing?Report
Also, DNA evidence cuts both ways. It should cause us to be more skeptical of the methods that led us to those wrongful convictions in the first place, and convictions based on those methods, but it should also cause us to be more confident in convictions where we do have DNA evidence available.Report
Exactly. That’s one of the many interesting features of this debate.Report
which of these two is more likely to see the sun again?
The white one.Report
This is a sweet topic, but I’m really fiending for a Coming Apart symposium. Think you guys will get to that in the near future?Report
Regrettably, Charles Murray had to decline. I don’t see the same value in it without him.Report
There are those who still say that we’ve never executed an innocent man. “Exoneration by DNA” makes this harder to support.
For any proponents of the death penalty, are you willing to excute someone who might be innocent? If so, what is an acceptable number of innocents to be excuted?Report
How many innocent people getting shot for (insert innocent activity here) are you willing to put up with due to your support of a police force?Report
It’s not quite the same thing. Police must exist in a dangerous millieu, and are required to make snap decisions all the time. So we all intuitively understand that those are precisely the kinds of circumstances that lead to tragic mistakes.
Our criminal justice system, on the other hand, is supposed to be rational, deliberative, and reasoned. Errors here fall more into the category of preventable mistakes.Report
Like Kathryn Johnston?Report
I wasn’t familiar with her name, so I had to look her up.
If you were talking about police misconduct, then I misunderstood your intention. And yes, this does make for a much trickier comparison.Report
I believe that in every case like Ms Johnston’s, of which there are FAR too many, those responsible should be held accountable, and the entire force needs to be trained / retrained in appropriate use of deadly force.
However, there is a difference between a split-second decision to fire / not fire, and a deliberative process to decide whether someone lives or dies.Report
Given that we will not be giving the entire force training/retraining in the appropriate use of deadly force and that we will, at best, only be intermittently holding officers accountable for mistakes/malfeasance, does support of a police force entail support of these things happening to a similar extent that support for the death penalty for criminals like Lawrence Brewer entails the death penalty for innocent people like Troy Davis?Report
I’m not sure what you’re getting at with this. What do you mean by “support of a police force”?Report
The original questions asked were: “For any proponents of the death penalty, are you willing to excute someone who might be innocent? If so, what is an acceptable number of innocents to be excuted?”
I wondered if proponents of a police force were similarly culpable for Amadou Diallo. (I also wonder if there is a number of Amadou Diallos that might result in folks saying “maybe we should get rid of the police force”.)
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The obvious objection is the cost of alternatives. If we eliminated the police entirely, presumably crime rates would be much higher than they are now. If we eliminated the death penalty and instead replaced it with life-without-parole, there would be basically zero change in anything except for the people on death row.Report
If we eliminated the death penalty and instead replaced it with life-without-parole, there would be basically zero change in anything except for the people on death row.
I think that if we eliminated the death penalty and instead replaced it with life-without-parole, we’d see the number of innocent people on “used to be death row” go up. Significantly.Report
How so? It’s not like there’s a huge number of people on death row currently–about 3200. Maybe it would lead to a larger number of people given life sentences, but that’s already an option in the justice system so I don’t see why it would necessarily skyrocket.Report
How many people on death row have been exonerated?
I suspect that not one, no… not one… would have had effort thrown their way without the death penalty.Report
Can I just agree with you both on this, if that’s possible?
Our prison system is a horrible shame. Our criminal justice system makes all kinds of errors, and the poor and racial minorities get by far the worst of it.
The fact that we take a few cases slightly more seriously — the capital ones — that shines a light on it.Report
Yes, it does. The consistent lack of widespread popular revulsion with, and reaction to, police misconduct answers your question.Report
I’m not sure what you’re looking for.
We should seek to reduce abuse, and murder by authority, wherever we can. We should do what we can to reduce the deaths of innocents, whether by police, military or justice system. We can tackle the last one by not executing anyone — at the very least, by setting the bar for execution extremely high.Report
Much of the problem is that police are, in general, put into a bad situation.
– They are chronically overworked and underpaid. Either they get a large amount of overtime (which cuts into sleep and relaxation), or they tend to take on secondary jobs moonlighting as security.
– The forces themselves are generally undermanned and unable to cover the territory assigned to them with alacrity. This leaves many calls unanswered or answered late. I waited for over an hour once to get an officer to stop by and fill out the police report for a car accident (not really an “at fault” thing, the other driver’s anti-narcolepsy meds stopped working). I asked the officer if something had been going on to make the delay so long and his response was that he was the only officer assigned to a 20 square mile area.
– Police officers don’t get a lot of downtime. Not a lot of vacation, and certainly not the mandatory vacation one would expect requiring in such a high-stress, high-overtime field.
– Police officers also don’t get regular counseling. Think of it this way: you deal with “criminals” all day. You deal with kids gone or going bad in gangs, you deal with domestic disturbances and fights, you deal with bar fights, you deal with the stupids. And you do this day in, day out. Either you’re the type of masochist who went into police work because you get some sort of high off of authority, or you went in idealistic and thinking you’d make the world a better place. Regular psychological health examinations, sit-downs with a police therapist, would do a world of good to help these men and women get off their chest some of the things they’ve seen or done that chew at their minds.
None of this excuses bad behavior by the cops. But we could probably make a lot less of it happen with some proactive steps to keep cops from being so close to that “one bad day”. After all, it’s kind of like lawyers right now in public perception – 99% of cops give the rest a bad name.Report
I think the main problem is that the wrong people become police. I know many police officers, and I have a couple relatives that have been cops, and they all tell me the same thing. The people that are attracted to police work generally have an authoritarian personality, combined with a Manichean, black-and-white moral outlook.
Confrontations are a central fact of police work. And the best officers know how to de-escalate conflict, and even–if necessary–back down. The hotdogs that typically populate urban police forces are too morally and emotionally rigid to do this, or even to treat a potential “perp” with sufficient respect to allow them to back down without feeling degraded. So minor conflicts become major conflicts, and major conflicts become lethal force episodes.
My nephew was a copy in LA for a little less than two years before he went back to college. In that time, he saw literally dozens of episodes in which illegal searches were performed, in which interviewees / suspects were physically assaulted by the police, and at least three episodes in which he was pressured to lie in court to back up a “fellow officer.”
So training is all well and good. But we would be far better off if we got the right people into the police work in the first place.Report
At least some departments discriminate against the intelligent. The most benign explanation is concerns over disparate impact. The reasons they give (smart people may get bored) are actually less charitable and more problematic.Report
I don’t think the death penalty is the right target here, though. It runs the risk that we’ll end the death penalty and say “well done”, and then go back to breaking people’s minds with years of solitary confinement, including people who are innocent. IMHO, the existence of the death penalty is not even close to the largest problem with the American prison system–I’m more exercised by wrongful convictions, violence and rape in prisons, and solitary confinement (and that’s not even getting into the question of the drug war). If I could fix all the other problems, but I had to leave the death penalty in place, I’d take it in a heartbeat.Report
How does eliminating the death penalty run any particular risks? The death penalty is barbaric. Most ethical cultures have abolished it. It has no deterrent value. Moreover, they are more expensive than most people might realize. By the time the offender has been processed through his appeals, hundreds of thousands of dollars have been expended on his case.
Our prisons are also full of people who might more properly belong in a mental institution. It is within the purview of the prison system to reform itself, to attenuate rapes and prisoner violence, but crimes within prisons cannot be eliminated completely.
Solitary confinement is a horrible thing. Prisons already segregate offenders by violence level and if some of them end up in solitary confinement, they cannot be trusted around other prisoners.Report
The risk is of malapportionment of effort. In a perfect world, absolutely I’d ditch the death penalty. But let’s face it, there’s a limited appetite for legislation that stops the abuse of prisoners. IMHO, we should make sure that our few shots do the most good, and making progress on wrongful convictions, prison rape or solitary would have more impact than ending a relatively small number of executions (a double-digit number in almost all years, compared to 80K people in solitary).
As for the prison system reforming itself, it hasn’t happened yet, and prison rape has been a cultural phenomenon for decades. It’s pretty clear that the for-profit prison, guard unions, and administrators have few problems with the current system–hell, they’re lobbying for longer sentences. Legislation is going to be needed to cure the rot.
As for solitary confinement, I’m pretty much convinced that long-term solitary amounts to cruel and unusual punishment. Speaking for myself, it’s just viscerally abhorrent, and the fact that it’s widely used is the most under-reported scandal of our time.Report
L’enfer c’est les autres. Hell is other people. Sartre. Prisoners have been thrust into a hell we’ve devised for them, they’re expensive, they’re just schools for criminals anymore. Perfection is asymptotic and abolishing the death penalty would be an excellent move up that slope. It’s just not working.
We might ask ourselves, as a society, how we could reduce the number of prisoners and more effectively use the limited resources at our disposal. Here’s one area where the Libertarians are on the right track: dealing with drug addicts more humanely, getting them cleaned up would eliminate their concomitant criminal activities such as burglary, robbery, prostitution. We need to address the drug problem and prostitution as a public health issue. Even the grimmest Conservative might get on board with that idea, considering he wants longer sentences for violent criminals.
The whole prison system is so bass-ackwards, it ought to reexamined, not by ethicists and criminologists, but by economists. Seemingly, we are the wickedest nation in the history of the world: Stalin imprisoned fewer of his subjects in the gulags on a per-thousand basis than the USA at present. Prisons are expensive and only serve to perpetuate the problems endemic within our culture. Surely we can start with the assumption we’ve just imprisoned too many people: we’re currently releasing prisoners due to overcrowding at present.Report
That’s 100% true.Report
We need to address the drug problem and prostitution as a public health issue. Even the grimmest Conservative might get on board with that idea, considering he wants longer sentences for violent criminals.
Not true. We’ve had a couple of propoostions to reduce sentences and use the money for rehabilitation, the Conservatives always vote them down. There is no arguing with “stupid or evil”.Report
Well sure. That’s why I propose some hard-nosed economic analysis and less hokum from Tough on Crime Crowd. It is manifestly true that our system isn’t working, that we’re only making it worse and it’s become a vicious cycle.
Get the drug addicts off the streets and into rehab. We’re only going to have to bury their corpses in Potter’s Field anyway if we don’t. They’re a menace to themselves, a menace to the people around them, none more so than their own families. They’re engaged in prostitution to support their habits, the prey of pimps and drug dealers, had I my way, pimping would be a Class X felony, with a prison sentence of no less than 15 years. Prostitution is an entirely different proposition.
Olly-olly oxen free, come out of the shadows, you drug addicts, get cleaned up and get right with the world. We’re sick of you having unsafe sex and sharing needles and spreading diseases thereby and the taxpayer having to foot the bill for the consequences of your habits and dealing with the crimes you commit supporting those habits. If we catch you, off you go to rehab and there you’ll go, over and over until you are cleaned up.Report
You’re forgetting that it’s not the prostitutes who bribe public officials to look the other way; it’s the pimps.Report
I see where you’re coming from, and I reluctantly agree. In a perfect world, we could discuss these problems like rational adults. Alas, we live in a world with “Three Strikes”, where prison rape is used for laughs, and were speaking out against these problems gets you shouted out.
I hate the idea that evil people like Perry can continue to kill people who are inconvenient to them. I wish I had a better answer.Report
It depends on how much of a deterrent effect there is. If we deter ten murders for each person wrongly executed, I think that’s a pretty good deal. If it’s less than one, not so much.Report
The number one question that I always have is why in the flying hell don’t the prosecutors seem to give a crap that they may have caught the wrong guy.
Even the most charitable answer that I can come up to that question is insufficient given what happens in practice.Report
I’d give a few answers:
(*) Look at how hard it is for some people to admit that calling a woman a slut and a prostitute and insisting on the right to see her naked is completely beyond the pale, because the guy who did it is on their side.Report
Prosecutors work closely with the police, and would rather not offend them often by telling them they’ve arrested the wrong guy.
Prosecutors work hand in hand with the police. If a witness needs tampering, the police are the ones cued to do it. If a witness is a hard nut to crack, have the police do a little “off the record” work before you tape the confession with a prosecutor in the room.
One of the biggest factors in evaluating a prosecutor is conviction rate. I expect there’s not much career reward for dropping charges just because the guy’s innocent, especially if it won’t result in convicting the actually guilty one (which in real life I suspect is almost all the time.)
Which is one of the stupidest things about the USA’s laughable “justice” system.
Given the human mind’s amazing capacity for rationalization and self-justification (*) , it’s going to be difficult for as prosecutor to admit to himself that he does have the wrong guy. This is especially true if some lab geek is telling you that the guy you worked hard to convince a jury to put in prison is innocent.
Don’t you think it’d be much easier if your conviction rate wasn’t reliant on keeping the guilty verdict? And that’s even before we get to the “he has to be the one, he’s a black guy” and the “well they’re all guilty of something” shenanigans common to prosecutors.
Look at how hard it is for some people to admit that calling a woman a slut and a prostitute and insisting on the right to see her naked is completely beyond the pale, because the guy who did it is on their side.
Look at the number of people unwilling to admit that a man in drag is wrong when he talks about how bombing other countries, enslaving them, forcing them to convert to christianity, and taking their oil is the right thing to do because Ann Coulter he is on their side.Report
*I can’t think of any sane moral calculus in which calling someone names is worse than demanding that the government force other people to give you stuff for free. But perhaps your capacity for rationalization is greater than mine.Report
I think many of them do, though it is certainly not all, and they do a good job of hiding it. I also think their real or perceived indifference is an function of the job we ask them to do. We give them a suspect and varying amounts of evidence and tell them pursue a conviction. The problem is that the amount and quality of evidence is not always a accurate signal of guilt or innocence, and in order to effectively try a case a prosecutor must in some sense convince himself that the person he is trying is guilty. This leads to a bias that does not allow the Prosecutor to reasonably weigh the guilt or innocence of the charged party, and instead relies on the prowess, or lack thereof, in the defense counsel to protect the innocent. Cognitive bias, especially for something as damaging as putting away the wrong man is a hard thing to come to grips with.
Not disputing that many prosecutors seem indifferent to the issue. This is another reason that prosecutor discretion, which is growing, should be rethought.
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JB:
“The number one question that I always have is why in the flying hell don’t the prosecutors seem to give a crap that they may have caught the wrong guy.”
Considering that most folks claim that they are innocent and that the cops arrested the wrong guy these claims get old after a while. Really, how often do folks proclaim their guilt right away?Report
But that’s entirely different from prosecutors who make cases in the face of contrary evidence. And after being shown that the case has or had cracks, still want to defend themselves. Almost as if, in some cases, the conviction is more important than justice.Report
Mark:
It is the defense attorneys job to develop and present contrary evidence. It is the prosecutors job to us the evidence they have, not the evidence they wish they had. It would be nice if every case had perfect evidence that was airtight but they don’t.Report
Surely you see how saying “It is the prosecutors job to us[e] the evidence they have, not the evidence they wish they had,” is just a benign-sounding way of saying “Almost as if, in some cases, the conviction is more important than justice.”
Then there’s that whole “not disclosing exculpatory evidence” thingy….Report
Mark handles most of my rebuttal better than I could. But to add, in many instances, the prosecutors know stuff about the case that damages their own prosecution but withhold it. Because the conviction is more important than justice. And surely this goes the other wa, too. Defense attorneys may know things that are damning to their client yet also do not divulge it.
But this isn’t about faking a foul to get to the line or knowing that the ball went out of bounds but the official didn’t see it so “play on”. This is ultimately a person’s life or freedom we’re talking about.Report
Right. I just wanted to add that the job of the attorney is to represent her client’s interests as best as possible. The interest of the defense attorney’s client is almost always to either obtain acquittal or, failing that, to obtain the lightest sentence possible. The interest of the prosecutor’s client – ie, the state – on the other hand is definitively NOT to obtain the maximum possible sentence against every individual prosecuted. It is instead to convince the court to punish the guilty – and only the guilty– in line with existing law to the extent possible.
The prosecutor’s client is not the arresting officer, but the citizenry (one of whom I jump to add is quite frequently the defendant).Report
An incredibly important distinction, to be sure.Report
Mark:
“But to add, in many instances, the prosecutors know stuff about the case that damages their own prosecution but withhold it. Because the conviction is more important than justice.”
Prosecutors are by law supposed to turn over any Brady material. I don’t defend them if they violate the law. However, I fail to see why they should turn over anything more than they are required to. As for “justice,” that is in of the eye of the beholder.Report
I’m totally with you on this one. There’re a significant portion of prosecutors who won’t even release evidence to the Innocence Project, or who will not move to release a prisoner who has been proven innocent by DNA evidence.
It points to one of the nasty parts of human nature. Once we “buy in” to an outcome, we tend to stay bought in.Report
But at least they are elected.
Just imagine how horrible the system would be if prosecutors’ rampant bloodthirst was not chained by the wisdom of the electorate.Report
Surely you jest. Prosecutors and judges are both FAR less likely to tend towards “convict at all costs” corruption when not elected, though there’s significant risk even still in politicians wanting appoint “tough on crime” flunkies.
All you need to do to assess the corruption state of a prosecutor or judge is watch their election campaign sloganeering. If they mention “tough on crime” and their conviction rate, they don’t care about justice at all.Report
Sorry. I must have only ratcheted the sarcasm up to 7.
Let me try again at 11.
“IT IS GREAT THAT PROSECUTORS HAVE INCENTIVES TO CONVICT REGARDLESS OF GUILT!”Report
I’m surprised no one has ever seriously proposed the professionalization of jury service.The idea of being judged by one’s peers has a certain romantic appeal, but I’d rather be judged by people familiar with criminal law and basic forensic science. I suppose there’s a possibility that professional jurors would be influenced by the same institutional mindset that creates overzealous prosecutors, but I think you could create a separate organization that instills an adversarial, truth-seeking ethos.
Alternatively, we could require high schools students to take jury duty seminars or institute some sort of national service program for basic jury training.Report
Well. Time to start raising taxes to fund the necessary bureaucracy.
But wait. Don’t we already have a class of people familiar with criminal law and basic forensic science who routinely judge cases. You know, the ones that judge people? Name is on the tip of my tongue.
Personally, I think that judges should not be elected either, but that is just me.Report
It seems to me that there might be room here for “Would you rather be judged by a judge, by a professional jury, or a jury of your peers?” I don’t have a problem with a professional jury in the abstract, but I don’t want to take away any right to be judged by a lay-jury. On the other hand, a professional juror might have an incentive to acquit because it would mean that defendants would give them more gigs.
But isn’t a bigger problem (in non-capital cases) than juries the deals that take place before it gets to a jury? I’ve read somewhere that juries, for cases that actually get to trial, are often more willing to acquit than we give them credit for.Report
A crucial task would be how to structure the recruitment and hiring process so that the state’s prosecutorial interests play no role. I’d propose a civil service type gig, where you have to pass an exam testing your demonstration of crim pro, the Sup Court’s due process rulings, and forensic science. Those who pass are put on the list, and move up as openings become available.
Then, to prevent too much of an institutional mind-set, they’d have a 5 year terms with re-appointment determined solely by random chance.
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Sounds about right to me, James.
Will, I think every defendant has a right to due process, but that doesn’t necessarily entail trial by jury. If professional jurors are fairer and more effective, I don’t see why your rights would be violated by having them adjudicate your trial.Report
Well, actually the 6th Amendment guarantees us the right to trial by jury…Report
I don’t understand why the text of the Sixth Amendment was preclude professional juries.Report
Err, would*Report
Although my response to Will Truman was inapt: I didn’t mean to say that criminal defendants aren’t constitutionally entitled to jury trials. I just think professional juries would satisfy that constitutional requirement.Report
I think it has to do with the requirement that the jury be unbiased, although IANAL and could be off base here. To quote Wikipedia: “Another factor in determining the impartiality of the jury is the nature of the panel, or venire, from which the jurors are selected. Venires must represent a fair cross-section of the community; the defendant may establish that the requirement was violated by showing that the allegedly excluded group is a “distinctive” one in the community, that the representation of such a group in venires is unreasonable and unfair in regard to the number of persons belonging to such a group, and that the under-representation is caused by a systematic exclusion in the selection process.”
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To be clear, this is the argument for professional juries being unconstitutional (maybe)–which doesn’t necessarily make them a bad idea.Report
My objections to automatic-professional-jury isn’t based on Constitutional grounds. Rather, it’s an innate discomfort with telling someone that their case can only be handled by professionals. Such may be constitutional, but to me it runs contrary to the spirit of a trial by jury, which is precisely to keep a check on government power by putting the ultimate decision-making in people that don’t need to be certified by the state. (That last part is not absolute, but exists far more now than it would if there was a professional jury.)Report
Perhaps if we had fewer Professional Witnesses, the usual scumbags for hire who turn up to impugn health care professionals and kick up sand in the witness box, I’d be more comfortable with the idea of Joe Schmo in the jury box. The Constitution gives us a right to a jury of our peers: if we had RNs and MDs and FACS people in that jury box, most of the shenanigans in a malpractice case would go away.Report
When the US first came up with the jury system, only citizens could vote… that meant you had to be at least moderately educated inasmuch as the ability to read, write, own land, enter contracts, and generally understand the law of the land.
Today, nobody understands the law, and we have professional consultants who’ve made it so that the best possible way to get on a jury is to be the kind of person too dumb to hold a job.
There’s no question jury reform is needed. What sort of reform is needed you and I probably disagree with. From the number of times I’ve been challenged off of a jury due to having a college education, I’m willing to bet if we restricted the pool to only people who have at least an associate’s degree we’d probably do a lot better with the system.Report
It would also open up a whole host of demographic questions. College graduates are not a representative sample of the public at large. A high school dropout would no longer be tried in front of a jury of his peers in terms of race, class, vocation, or much of anything. Not that juries are chosen specifically for peerdom, but that *is* a part of the process. The vast majority of the population would be excluded from the judicial process… except as defendants.
This all strikes me as very, very problematic.Report
No more problematic than a medical malpractice trial being decided by 12 people from a trailer park or the slums, most of whom never even graduated high school.Report