L: Doug, in our conversation last week, we touched on the topic of jury duty, and I could tell that you had a lot of thoughts on the subject. It's an important topic, since the jury system is, theoretically at least, meant to be the ultimate bastion of justice. But you spoke of how, although most people evade summons for jury duty if at all possible, for you it's academic, because you'd never be allowed to sit on a jury anyway. Where does that leave things – do you think the jury system is a good idea?
Doug: My view has always been that what really holds a society together is not the body of law enacted by a legislature or handed down by a king, but peer pressure, social opprobrium, and moral approbation. When somebody breaks a society's rules, a trial of some type ensues, to determine who's right, what harm has been done, who should be compensated, and so forth. Juries are one way people have developed for helping to determine these things. But I would argue that the state is not a necessary part of any of this.
L: You would probably argue that the state shouldn't be part of anything at all…
Doug: Yes, but it might be easier for many readers if we start with the minimal "night watchman" sort of state described by Ayn Rand. In her view, the proper role of government is to defend you from force (and fraud). That implies an army to defend you from force external to your society, a police force to defend you from force within your society, and a court system to allow adjudication of disputes without resorting to force.
I could live in a society like that – it would be a vast improvement over what we have now – and the jury system would be part of it. But, as you say, I'd go on to argue that juries and courts should be privatized.
L: Justice is a service for which there is a market. We'll probably have to come back to that, to explain how it might work – and why it would be better than what we have now – but, whether private or state run, you are agreeing that juries are a good idea?
Doug: Yes, especially when they're composed of independent thinkers, who aren't easily swayed by rhetoric, or pressured by groupthink. They are a good balance against the tremendous power of judges. And judges, these days, are either elected officials, which means they have to campaign like any other politician and are subject to the same perverse incentives any other politician is, or they are appointed, which is even worse. Appointees are usually just collecting political favors, and while allegedly more independent, are in many ways even less accountable.
So, in theory, a jury is a good counterbalance to the power of the judge. You need some way to weigh the facts and decide who's in the right. If all of that were on one elected or appointed man or woman's shoulders, there could be a lot of problems. But the way juries work in the U.S. today is far from optimal.
L: How so?
Doug: Well, the way juries are run today is really a form of involuntary servitude. You get your notice for jury duty and you either have to serve, whether you want to or not, or come up with excuses the state will deign to accept. Most productive people feel that they have more urgent priorities in their lives than helping to decide court cases, and a court case can go on for months. So the type of people that end up serving on juries these days are generally people with nothing better to do, or people for whom the trivial fee they pay is good money. Neither is necessarily the best kind of person to be deciding weighty matters, perhaps even life and death. In addition, many trials center on highly technical concepts, and forms of evidence, that these people are simply unqualified to interpret.
Worse, there's the jury selection process we mentioned last time, called voir dire. The notion is to give both side's attorneys opportunities to remove a few individuals from the jury who might be biased against their case, thus assuring a more unbiased jury. But in practice, it's an interrogation process by which the lawyers try to ensure they get a jury that will believe whatever they tell them. That usually means that anyone exhibiting the least bit of independent thinking, or who is prone to value justice over law enforcement, gets removed and will never serve on a jury.
L: My friend Vin Suprynowicz at the Las Vegas Review Journal says voir dire is French for "jury tampering."
Doug: He's right. And the result is that juries today are several standard deviations below what they should be. Any intelligent person has opinions, and in this day of the internet, almost any person's opinions are easy to find out. No matter which way your opinions line up, one side or the other in any case isn't going to like them, and you won't make it past voire dire. On the other hand, the qualities in a juror both sides will like to see are malleability and an easily influenced mind. The typical juror has no opinions other than on the weather, sports, and American Idol. People who think in concepts are weeded out as troublemakers. The typical juror is somebody who might be a candidate for appearance on Jay Leno's Jay Walking.
L: You could say it's the process by which the system assures that no qualified person serves on a jury – or the process by which we make sure to get the dregs of society's barrel instead of the cream of society's crop.
Doug: It also makes a shambles of the concept of a "jury of your peers." The type of people they could rope into jury duty wouldn't be my peers – they wouldn't even be the peers of the average person. If I were facing a trial, I'd much rather be tried by twelve people randomly selected out of a phone book than by the type of people who get selected for jury duty.
L: So, what you're saying is that juries are a good idea, in theory, but in practice, the jury system is so distorted, it's actually a liability against justice?
Doug: Right. If we're to have juries, they ought to be truly juries of our peers – people who can understand you and the facts pertaining to your case. But we're far, far from an ideal system. It's worse than arbitrary; given that most of those employed by the justice system work for the state, and that it's the state vs. an individual in so many cases, there's a huge inherent bias on top of the whole problem with today's stacked juries.
L: So, what would an ideal system look like to you?
Doug: In my ideal system, courts, judges, and even jurors would compete with each other to offer their services. They'd promote their proven records of intelligence, fairness, speed, and low cost.
L: I know what you mean, but the idea of private courts, judges and juries is probably so alien to most of our readers that the idea won't compute at all. To explain, justify, and illustrate how such a system might actually work would make a book out of this conversation. So let me suggest a book that already does a good job of doing just this, as well as explore other important ideas: Robert A. Heinlein's The Moon is a Harsh Mistress, which we discussed in our conversation on speculator's fiction.
In this book, the moon is used by Earth authorities as a penal colony. The prisoners have no laws – are not allowed to have laws – so the entire society is regulated by custom, or culture. There's a part of the book that describes effective justice being done in a lawless society – the hero, in fact, gets asked to judge a case by a gang of youths who are offended by a man from earth who kissed one of their girls without asking permission first. Both sides have to pay the hero to accept the case.
Doug: L. Neil Smith's North American Confederacy books also describe privatized legal systems. And for a full explanation, in a straight forward non-fiction context, I recommend Tannehill's The Market for Liberty. It's one of the two or three most important books I've ever read, and it can be downloaded as an audio book for free.
L: What do you say to people who argue that private justice services would be biased – they are for hire after all – and that you need the state to insure impartial justice.
Doug: I'd say that they must have had no exposure to the current legal system, which is anything but impartial and has very little to do with justice. If you separate justice and state, for one thing, it eliminates the ability of the state to prosecute phony, made up crimes, especially so-called crimes with no victims. If the state can't be party to a case, then there needs to be an actual victim to press charges. That right there would eliminate all the stupid, counterproductive wasted resources and trashed lives that result from the U.S.'s various wars against victimless crimes. No one could be prosecuted for having unorthodox sexual preferences, using unpopular drugs, drinking on Sunday, or smoking in a bar for smokers. Or for evading taxes.
L: If whatever governance system such a society had could not prosecute for tax evasion, that system would have to rely on collecting fees for services it renders… which would limit those services to ones people are actually willing to pay for. Instead, in the U.S., the justice system has become a machine for enforcing laws. It's not about defending people from force or fraud, but about imposing the will of the rulers upon the people. I hadn't thought of it in just this way before, but separation of justice and state would end the ability of any government to ride roughshod over the people it allegedly serves.
Doug: And it would focus legal action on actual matters of tort, and breach of contract, where it belongs. Further, ignorance of the law is impossible, when the laws are all derivations of the two great laws: Do all that you say you're going to do, and don't aggress against other people or their property.
L: Some people might think you're talking about a sandwich, or a cake when you mention a tort...
Doug: Those are the kind of people who end up on juries today. The point is that justice has to do with righting actual wrongs that have been done to people, not enforcing laws, which means enforcing the will of the politicians, which means nothing more than being the brute squad for the king, as in old times.
At any rate, with privatized justice someone would accuse another, both sides would choose an arbitrator (professional or otherwise), and those two arbitrators would agree on a third to make sure there were no tied votes. They would look at all the facts – not just the arbitrary subset of facts allowed by legal precedent and state machinations – and they would decide. That decision would not be about punishing anyone, but about making the harmed party whole again. Compensation.
L: The key concept here is restitution. A justice system is not a penal system, but a system to set wrongs aright, at least as much as is possible. You steal a hundred dollars, you have to pay back a hundred dollars, plus something for the time and effort involved in recovery. Some harms can't be undone, like murder. In The Moon is a Harsh Mistress, a man who killed another would be responsible for the deceased's widow, children, bills, etc. for life. If he didn't honor those responsibilities, no one would hire him, sell to him, serve him food, or clean his boots. It would become a virtual death sentence, not by execution by the state, but by ostracism – the near impossibility of living in our modern world without any transactions of any kind with other people.
Doug: That reminds me, I oppose the death penalty.
L: I know you agree with me that violence in self-defense is justified, so I know you are not opposed to murderers dying at the hands of their intended victims, who defend themselves at the moment of the attempted crime. You mean that the power to kill citizens in custody should never be given to the state?
Doug: Why people assume the state should have any godlike powers amazes me. On an ethical basis, once you've disarmed a criminal and tossed him in jail, he's no longer an active threat to anyone, and so lethal force can't be called self-defense. On a more practical level, once you give the power to kill to the state, that power will be abused, and that's very dangerous.
Entirely apart from that, executing someone makes it impossible for him to ever compensate the victim, or the victim's estate – at least to the greatest extent possible. Locking people in cages as punishment only costs the victim more money in the form of taxes. It also tends to harden the convict, and the whole enterprise degrades the moral tone of society. And, most important, imprisonment makes it impossible for a criminal to do anything productive to pay off damages owed victims.
L: I'd expect that having to actually pay for your crimes would be more instructive than simply "doing time." And, if the driving concept is restitution, the harm you do by locking someone up cannot exceed the harm they have done to your person or property. The moment they balance, the offender goes free, or you end up owing him, or her, restitution for your unjust infringement of rights.
Doug: Once again, the key concepts are justice and restitution, not punishment. Punishment, if you actually think about it, rarely serves any useful purpose; it just gives vent to the basest and most reactive emotions of the victim. It sets a "good example" to deter future miscreants; it sets a bad example for society as a whole, by institutionalizing and justifying cruelty.
L: Okay, but what if you kill someone who has no relatives? If the state can't prosecute you, and the only one harmed is dead, do you go free?
Doug: Almost everyone has some connections. The victim's employers might sue you for the disruption you caused them… but the main line of defense would probably be insurance companies. It could be anyone with an interest in the victim's life.
L: Lends a whole new meaning to the idea of life insurance. And I suppose that if someone were such a destitute hermit that he or she had no connections to any others, such that no one would step forward to press charges against you, we'd be talking about the sort of homeless wretch who gets no protection in our current society. A breakdown of the system in such an extreme case can't be said to be a fatal flaw when it'd be an extremely rare fluke. And it's one the current system is just as vulnerable to, if not more so, given the mistreatment many in the underclass suffer at the hands of thugs in uniforms today.
Doug: That's right. And this is not a set of ideals limited to science fiction novels. Private arbitration exists today and is very common. Many contracts you sign these days include consent to arbitration clauses, because people know that any disputes that arise will be resolved faster and cheaper if handled outside the state's legal system. The state legal system today is a disaster. It takes forever to get your case heard. It will bankrupt you with legal and court costs while you're there. And once you're in, you will despair of ever getting out.
The idea you describe from Heinlein's book is also not new, nor that fantastic; it's been done. In several ancient societies, especially the Nordic ones, if you had a judgment against you and failed to abide by the terms of the judgment, you became an outlaw. You were literally outside the law. Since you would not accept the judgment of the society, that society would not protect you in your turn – that made you fair game for any one who decided to make furniture out of your bones.
L: Okay, so it's not just science fiction – but it's certainly not how things are today. Today we have a penal law-enforcement system instead of a justice system. What do you do if you do get dragooned into involuntary jury service?
Doug: Then you may have a chance to use the power of the jury to overturn unjust laws. Some years ago, I was a director of the Fully Informed Jury Association (FIJA). That organization's raison d'être is to inform everyone in society that a jury's proper and historical function is not to enforce laws, but to stand as the final arbiter of law, and thus to protect people from tyranny.
In other words, every jury on every case could act in the way the Supreme Court acts today, judging the law as well as the facts of a case. This is the way America's founders saw juries – their purpose was not to see if any laws were broken, but to see that justice was done.
L: While you've been speaking, I've pulled up the FIJA web site, and found some quotes to back you up:
Thomas Jefferson: "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution."
John Adams: "It is not only the juror's right, but his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the instruction of the court."
Alexander Hamilton: "Jurors should acquit, even against the judge's instruction ... if exercising their judgment with discretion and honesty they have a clear conviction the charge of the court is wrong."
I'm not a big fan of Hamilton, but I'd have to agree with him on that last quote. And this is exactly the opposite of what a judge will tell a jury today, when giving instructions before deliberation.
Doug: Yes, judges' instructions today are entirely improper, and a subversion of what juries are supposed to be. But the fact of the matter is that judges are just government employees. They're the king's men, on his payroll.
L: What would you say to people who say that jury nullification – juries refusing to convict lawbreakers – is what allowed white good old boys to literally get away with murder in the old South?
Doug: Lynching was certainly a terrible thing, but in a society so biased and hostile against a minority, the law was not much protection either – and, in fact, many unjust laws were put in place to perpetuate inequality and injustice. But also, as a matter of fundamental principle, it's worse to convict and punish people unjustly than to let a few guilty ones escape.
Jury nullification is a tool, and like any tool, it can be abused. But though this is a tool that lends itself to occasional failures to see justice done, robotic enforcement of laws by juries is a practice that guarantees and mass-produces injustice. Remember that the states' laws are not made by infallible gods, but by fallible politicians. It was once legal to own another human being, and jury nullification by abolitionists – who refused to convict those who helped escaped slaves – was a powerful force for justice and social change.
L: Hm. So, if you did get summoned to jury duty, would you ever consider playing the role of Joe Six Pack, to try to get on a jury and see if you could help justice triumph over law enforcement? I see that FIJA actually has a pamphlet on surviving voir dire.
Doug: Well, I don't think you or I could ever get past the voir dire process and on to a jury, but if by some miracle someone of goodwill and interested in justice were to do so, I'd say yes. By all means, get on a jury, if you can. Striking a blow for justice is worth some inconvenience and effort.
L: Is there hope for the future in fully informed juries, then, Doug?
Doug: No, the situation is truly hopeless. It's so far gone, I think the best we can hope for is a controlled demolition. But in the meantime, good people who get on juries can help prevent the legal system from creating more injustice, at least from time to time. Even if you're the only one willing to vote your conscience and refuse to convict on some ridiculous traffic case, or prostitution case, or drug case, you can still hang the jury and prevent conviction, at least at that time. I think it'd be wonderful if people did that – by all means, if you believe in justice, go ahead and see if you can get yourself onto a jury.
L: To get past voir dire, you might have to lie, or at least refuse to give fully honest answers to questions.
Doug: I would say it's entirely ethical to keep some of your thoughts to yourself in the interests of seeing justice done. Just act uncertain and confused – like all the others certainly are. You'll be indistinguishable, you should be fine, and might do some good.
L: I've thought about that; it'd be fun to help our legal system achieve some justice, in spite of itself. But to show up at a court, as ordered, and to cooperate with a system that presumes to command me to give it my time – it just runs so counter to my nature, I'm not sure I could do it.
Doug: I understand, but if I could get on to a jury and foil an unjust prosecution, I'd love to do it. And I'd encourage each of the 100,000 people reading this to do the same – and more, to spread the word to everyone of goodwill they know. As long as the jury system holds, there's a chance for people of conscience to overturn unjust laws, at least on a case-by-case basis. This could actually have a far, far larger effect on society than voting.
L: That's a key point; if we can't get the skittering creatures under the rocks in Washington to do the right things, we can do the right things ourselves in the courts, which is where the hard edge of the law actually hits people. Especially for those who are unable, or unwilling to vote with their feet, this is a way to fight back, without violence, and without participating in coercion.
Doug: That's exactly right. And they can take comfort in the fact that as little as 100 years ago, this would not be a subversive act, but was exactly what was expected of a juror. The whole system has been turned upside down, and become the opposite of what it was meant to be.
L: It's perverse.
Doug: [Laughs] Good word.
L: Are there any investment implications to this? Or is this conversation just a public service announcement?
Doug: Well, I see people being convicted under ridiculous applications of the securities laws, tax laws, and more. In fact, almost all the administrative laws of the myriad of three and four letter agencies – ATF, FTC, EPA, SEC, FDA, etc, etc., are totally bogus and nonsensical "crimes." And even if you aren't convicted, it costs you hundreds of thousands, or even millions of dollars in legal fees, plus time, plus lost business, and reputation. All that just to defend yourself from this blindly rapacious system. And as the state grabs more and more power with each passing crisis, the risk of this sort of unhappy attention from the state increases, even for the people with the most innocent and honest of intentions and deeds. This is almost bound to get worse before it can get better, and that has very negative implications for anyone with any wealth the state might decide to question.
That has very serious implications for people in business, for investors, and for the stock market. This is one reason I'm so bearish on the prospects of the current world order; not only are there decades-long distortions in the economy that have to be liquidated, but the whole legal system is rotten to the core. It needs to be scrapped – someone needs to push the reset button and restore justice as its guiding principle – and that too is a distortion that can't be corrected easily or painlessly.
This is just one more thing to think about as we watch the global crisis deepen, one more trend to be aware of as we make our plans and shift the allocation of our assets.
L: Understood. Another sobering conversation, but it needed to be said. Thanks.
Doug: You're welcome.
It may be difficult to get justice these days, but taking a look behind the scenes helps smart investors prepare for the worst. That's why every month, Doug and the editors team of The Casey Report dissect Washington's and the Fed's political shenanigans and how they may affect your personal wealth. It's never been more important than today to see the big picture, in order to discover how you can protect your assets and profit even in the worst of times. Learn more here.