But there’s a bigger issue, too: As Daniel Richman, a professor at Columbia Law School points out, the defining feature of laypeople is that they’re not experienced in what they’re being asked to do—and even worse, they are frequently biased in ways that would compromise their ability to make objective judgments. Richman argues that in order to be fair, the criminal justice system must treat like crimes alike—which is precisely why having a professional prosecutor keeping track of precedent and making decisions based on past practice is better than having random people come in off the street. Even Bowers concedes that a quick look at the distant past, when American grand juries were more powerful, underscores this concern: For every instance of a Northern jury refusing to indict an abolitionist for violating the Fugitive Slave Act, there was a Southern jury that refused to indict a white person facing charges of violence against a recently freed slave.
At issue, then, is whether we should expect ourselves and our fellow citizens to know better than the professionals what is and isn’t fair. Richman points out that citizens like tough justice systems, as they’ve shown by electing tough-on-crime politicians and prosecutors. He argues that it would be foolish to expect something to change when the same citizens were impaneled on a jury. But proponents of more public participation argue that people think about punishment differently in the abstract than when a crime is real and specific. It’s easy, they say, to be unforgiving while sitting at home and thinking about the threat of crime, but harder when you’re actually facing a defendant and deciding what should happen to him.
Of course, it’s impossible to know how more input from everyday citizens might affect any particular case. To the people on the federal grand jury in Massachusetts, a suspect like Aaron Swartz might have looked more sinister, or more innocent, than we assume from the outside. The question, as we scrutinize the workings of our criminal justice system, is how much we want their opinions to matter.
Leon Neyfakh is the staff writer for Ideas.E-mail firstname.lastname@example.org.