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The Jury System is a cornerstone of justice and liberty. However, they are also controversial. On the one hand, there are those who see the jury system as an integral part of a free and impartial justice system. On the other hand, there are those who doubt the jury’s ability to deliver fair and honest verdicts.
Let’s start with the obvious fact that juries are far from perfect. They are imperfect because the people who make them up are imperfect. Ignorance is one major problem. Opponents of the jury system argue, with some justification, that it is too dangerous to place the fate of another human being in the hands of people incapable of understanding the complexities of the cases they are judging. Often those tasked with deciding the outcome of cases lack the technical or legal knowledge to adequately interpret the evidence and testimony being presented to them. It has been suggested that in these cases individual jurors will often resort to pre-conceived beliefs or allow themselves to be influenced by jurors with more knowledge – whether real or perceived – than they have.
Ignorance, however, is an easily solved problem. Why not select jury members based on their familiarity with the subject matters under discussion? Someone who works in the finance industry – bankers, financial advisors, accountants, and so forth – would be more equipped to judge financial-based crimes than the layperson.
Then there’s the question of who can sit on a jury. In the United Kingdom an individual needs to be aged between eighteen and seventy, have been a resident of the UK for at least five years since the age of thirteen, and must be mentally stable to serve on a jury. It would more than reasonable to suggest that qualifications for jury duty ought to be more stringent than they are. It is more than reasonable to suggest that the age limit ought to be raised from eighteen to perhaps twenty-five (if not older) and that jurors under the age of forty ought to have certain intellectual qualifications. This would ensure that those tasked with determining guilt or innocence would have the wisdom and/or intelligence to comprehend the grave nature of the responsibility they have been burdened with.
Those who criticise juries also argue that they are prone to bias and prejudice. In one shocking case, Kasim Davey was jailed for contempt when he boasted: “I wasn’t expecting to be in a jury deciding a paedophile’s fate. I’ve always wanted to fuck up a paedophile and now I’m within the law.” (Seemingly it never occurred to Mr. Davey that the man he was judging may have been innocent). Likewise, it is well known that many African American defendants were condemned by all-white juries in the Jim Crow South.
However, much of this is a red-herring. Professor Cheryl Thomas, the director of the Jury Program at University College of London, spent ten years analysing every jury verdict in England and Wales taking into account the race and gender of both defendants and jurors. Professor Thomas concluded that:
“There’s no evidence of systematic bias, for instance, against members of ethnic minorities, or that men are treated differently than women, that if you live in a particular part of the country or you have a certain background that you’re more likely to be convicted than others.”
Besides, those who criticise the jury system forget that juries reflect the values and principles of their society. If juries repeatedly deliver unjust verdicts it is because there is a sickness in that society. The fact that all-white juries tended to convict African American defendants merely because they were black is a reflection on the virulently racist nature of that society, not of the jury system itself. Today, the legal system is careful to disqualify those jurors who may harbour prejudices that will inhibit their ability to judge the facts impartially. Courts are very quick to disqualify jurors who may know the defendant or alleged victim, those with emotional links to the case (i.e. a victim of rape sitting on the jury of a rape trial), and so forth.
Lord Devlin, the second-youngest man to be appointed to the English High Court in the 20th century, once described the jury system as “the lamp which shows where freedom lives.” The principle behind juries is that the individual ought to be judged by his peers based on community standards, not by the politically elite. Without juries, our legal system would be dominated by judges and lawyers. What lies at the centre of the debate over juries is the question of whether the whole of society or just the elite should be involved in the dispensation of justice.
February 3rd last year marked the fiftieth anniversary of the execution of Ronald Ryan (1925 – 1967), the last man to be hanged in Australia. Since then, the general consensus has been that the death penalty constitutes a cruel and unusual punishment. Contrarily, however, it is the opinion of this author that the death penalty is not only just, but a key part of any justice system.
There are two main arguments against the death penalty. First, that it is an exceptionally expensive form of punishment. And second, that the death penalty leaves no room for non-posthumous exoneration.
The first argument is one of economics, not of morality or of justice. It does not argue that the death penalty is immoral, only that it is expensive. What this argument suggests is that a price tag can be placed on justice. That the most important factor determining a case is not whether justice is served, but how much money it will cost.
The way a society punishes murder is reflective of the value that society places on a human life. The life of a human being is not something that can have a time-based value placed upon it. It is something that has immeasurable value and purpose. The Norwegian mass-murderer, Anders Breivik, a man responsible for the death of seventy-seven people, received a sentence of just twenty-one years for his heinous crimes. A society that decides that the value of an individual’s life amounts to only one-hundred days is one that has no respect for the sanctity of life.
The second argument carries a great deal more weight. It is an undeniable fact that innocent people have, and continue to be, executed for crimes they did not commit. In the United States, prejudice against African Americans, Jews, Catholics, homosexuals, and other people often meant that justice was not as blind as it should have been. Furthermore, in an era before DNA evidence, convictions were based upon less reliable physical evidence and eyewitness testimony. And such evidence naturally carried a higher rate of false convictions.
There are two problems with the innocence argument. First, the advent of DNA along with other advances in forensic science has meant that the possibility of executing an innocent person is very low. DNA may not be foolproof, but when combined with eyewitness testimony and additional physical evidence, it makes a guilty verdict all the more concrete.
Second, the innocence argument is not an argument against the death penalty. Rather, it is an argument against executing an innocent person. It only applies when the condemned man is not actually guilty of the crime he has been convicted of. What it does not address is how a person whose guilt is certain beyond all possible reasonable doubt ought to be treated. When an individual’s guilt is that certain the innocence argument no longer carries any weight.
There are two primary arguments for the death penalty. First, that there are crimes so heinous and criminals so depraved that the only appropriate response is the imposition of the death penalty. And second, that the death penalty is an essential aspect of a just and moral justice system.
That there are crimes so heinous, and criminals so depraved, that they deserve the death penalty is self-evident. Carl Panzram (1892 – 1930), a thief, burglar, arsonist, rapist, sodomite, and murderer, told his executioner: “hurt it up, you Hoosier bastard, I could kill a dozen men while you’re screwing around.” Peter Kürten (1883 – 1931), also known as the Vampire of Düsseldorf, told his executioner that to hear the sound of his own blood gushing from his neck would be “the pleasure to end all pleasures.” Finally, John Wayne Gacy, Jr. (1942 – 1994) was convicted of forcibly sodomising, torturing, and strangling thirty-three boys and young men. The question, then, is not whether or not any individual deserves the death penalty, it is whether or not the state should have the power to execute someone.
The answer to this question is undoubtedly yes. It is frequently forgotten, especially by humanitarians, that the key aspect of a criminal penalty is not rehabilitation or deterrence, but punishment.
In other words, what makes a justice system just is that it can convict a person fairly and impose on them a penalty that is commensurate with the nature and severity of the crime that person has committed. What separates the death penalty from extra-judicial murder is that the condemned person has been afforded all the rights and protections of law, including due process, a fair and speedy trial, the right to trial by jury, the presumption of innocence, and so forth, regardless of their race, religion, sexuality, or gender. When a sentence of death is imposed upon a murderer, it is not a case of an individual or group of individuals taking vengeance, but of a legitimate court of justice imposing a penalty in accordance with the law.
What makes the death penalty an integral part of any justice system is not that it constitutes a form of revenge (which it does not) or that it may deter other individuals from committing similar crimes (which it also does not). What makes it just is that constitutes a punishment that fits the crime that has been committed.