2 February 2003

A few weeks ago, a friend relayed to me his slightly-tragic, funny, and disturbing story of service on a jury here in New York City. The case involved a murder, with a defendant who was a juvenile at the time the crime was committed. While the defendant was acquitted of some charges and found guilty of others, most of our conversation concerned the torture my friend felt being on the jury – and particularly of participating in deliberations with a collection of citizens who, it seemed, were less intelligent than he. This was no mere elitist griping: on a small scale, he described simple words being misused, misspelled, or misunderstood (e.g. the distinction between “empathy” and “sympathy”), while in the larger discussion of the defendant’s guilt or innocence there seemed to be little understanding of the subtleties of a burden of proof as it relates to criminal intent.

Many have written their harrowing stories of jury service; I can only partly relate to the experience, since every time I have been called for jury duty I have left without being picked to serve. (I can think of a number of reasons why this might be the case, but they are irrelevant here.) There are also many articles and treatises on the value of the jury system, and the pros and cons of allowing life-altering decisions to rest with citizens who may or may not be able to understand the legal issues and nuances involved in any given case. However, what struck me as more important about my friend’s story was the fact that he had been forced to participate in the process – as most of us are in the U.S. – which made me wonder again about the participatory nature of our democracy.

I can think of no other part of our political system that forcibly requires participation in the same way – which is absurd, given that there are other components of American political life which should be equally compelling to the citizenry. The most obvious of these is voting, which is by far our most underutilized right; typically only 50% of voting-age Americans bother to show up at the polls for presidential elections, and even fewer vote in the so-called “mid-term” elections (36%).[1] Consider some other models: in many other “western democracies,” a public holiday is made of election day specifically to encourage citizens to vote, although voters are not legally compelled to cast a ballot; other countries, like Iraq, make voting a legal requirement, though there may only be one candidate for whom to vote. I am not suggesting that the U.S. adopt the latter model, but moving to the former (as many of our democratic allies have) could foster an environment where Americans decide that voting matters, instead of simply seeing it as an irrelevant bother. Never mind that this is a self-fulfilling prophecy – many people do not vote because they feel it has no value and can make no difference, and thus very act of not-voting ensures that this will be the case – and one that certainly works to the benefit of those Americans with very narrow political interests who can marshal support for their particular causes.

While not compelled to vote, we are required to pay taxes, obey criminal and civil laws, and register for the so-called “Selective Service,” in the event that the military draft is reinstated. These are not quite passive parts of our lives, but most citizens would have to make an active choice in order to break these laws rather than to obey them (although clearly many do make that decision). But what emerges here is a picture of American democracy that only places demands on its citizens when the requirements are most clearly in its own self-interest: without tax dollars, the government would be bankrupt (even more than it already is); without knowing which citizens are available for military service, the government might not be able to defend itself, or us. Voting, on the other hand, is clearly irrelevant to the operation of government. It is a right we take for granted and regularly abuse, to our own detriment.

In New York, the rules for jurors have changed over the years; loopholes that once exempted lawyers or allowed others to evade service easily have been closed, and a few years ago even New York City’s then-Mayor Rudy Giuliani was called to participate. The demand for jurors in a place like New York is heavy – 450,000 people are summoned annually on a statewide basis[2] – where the criminal and civil justice systems both have a surfeit of cases. As Judith S. Kaye, the Chief Judge of New York states in her introduction to New York’s Juror’s Handbook, “Automatic exemptions have been eliminated, so that everyone will share the benefits and burdens of jury service...”[3] “Benefits and burdens” is a good phrase; now if only Americans felt the same way about the most basic obligation of our democracy, the nature of that democracy itself might evolve in all the right ways.