The framers of the Constitution considered jury trials the last bulwark of a free people. Thomas Jefferson called the jury trial “the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” If “the consent of the governed” is the name, jury trials are the game. Citizens judge the facts and interpret the law, not the government.

But who exactly are your peers?

In the Jim Crow South, the “peers” serving on juries were all white. Today, in capital cases, none of your “peers” have an objection to the death penalty, though once you step out of the court room, about one in three is morally opposed. Of the one-in-four citizens who are not registered to vote — the rough percentage of unregistered voters in most states — almost none will be excluded from the juries of “peers” that judge you.

Every complexity that is added to the jury selection process is an arrogation by the government of power that belongs to the citizens. If the government picks the jurors, the government picks the verdict; if the government picks the verdict, we are no longer a free people.

Process as punishment

Although formally you are innocent until proven guilty, it may not feel like you have due process rights when you get a parking ticket. In fact you do — the system just makes it difficult to exercise those rights and easy to waive your rights and accept a guilty verdict even if you believe it is unfair.

The presumption of innocence is too important to sacrifice in favor of better parking enforcement. The judicial system should not be designed to steer people toward reluctant compliance with the diktats of the state bureaucracy, but instead to offer citizens a chance to state their case and be judged by their peers. If our leaders put their mind to it, surely they could design a process that would make it as easy to plead innocent as to plead guilty.

More laws than we can enforce

Most people who violate speed limit laws are not caught and punished. Laws like this, those that appear on the books but are widely disregarded, are dangerous because they lend themselves to selective enforcement. A police officer may only pull over minorities, people driving cheap cars or people that “look suspicious.” A law that everyone breaks makes everyone a lawbreaker; when everyone is a lawbreaker, our right to privacy and the presumption of innocence is at risk.

I am in favor of speed limit laws. But, let’s set the speed limit to a level we would be comfortable actually enforcing, and then develop a system to give every speeder a ticket. Laws that are not followed, not enforced by the government and not respected by the public hardly deserve the name of “law.”

Jury nullification

In the common law tradition the United States inherited from Britain, juries are empowered to judge not just the facts, but also the law. In most cases, judges instruct juries on which facts must be established in order to prove the charges under consideration. Several hundred years ago, juries were instructed to return a verdict of “proven,” that the facts had been established beyond a reasonable doubt, or “not proven,” that they hadn’t been. The verdict “not guilty” was an innovation by juries themselves, used to state that, irrespective of the facts, the person should not be convicted. Before the Civil War, juries often declined to convict Northerners who did not return fugitive slaves to the South. During Prohibition, juries consistently nullified alcohol control laws.

Today, with a record prison population, drug laws whose application tear our communities apart and politicians who promise longer prison sentences, every citizen should understand their right to interpret the law, and should understand how it applies to them.

Updating jury service

The solution to problems with the jury system is more justice for citizens, not less. When juries are biased, as often happened in the pre-Civil Rights South, the solution should be to balance the make-up of juries, not reduce their power. The government should develop laws that the people believe in and then let the people enforce them. If the government cannot enforce laws with juries, those laws probably shouldn’t exist.

The jury is the final protection of a free society against an overweening government — your liberties are protected by the judgments of the people, not the inclinations of the rulers.

Contact him at kstinch "at" stanford.edu