What kind of Americans
March 16, 2000
Our jury system is supposed to be a buffer between us–the citizens–and the government. It is there to prevent the abuse of power that governments have exercised since the dawn of civilization. Juries do not exist as an arm of the court, rather they are there as an arm of the people so that our own government can never arbitrarily throw those it has accused of crimes into jails like some banana republic dictatorships do. Nor can it fine them, confiscate their property, or execute them without the people’s consent. Juries are not minions of the bureaucrats, the elected officials, or even the judges. They are there for us and are, in fact, the most powerful force in any courtroom where they are allowed to sit. To men like Jefferson, Madison, Mason, and Washington there seemed to be no way such a system could be subverted.
But in the early 1960s Stanley Milgram, a psychologist at Yale, conducted an experiment to gain insight into how ordinary Germans could have staffed concentration camps and sent millions to their deaths. The Germans in question were ordinary folks who should have known the difference between right and wrong. Milgram devised a little test to see how they could have gone wrong.
Here’s what Milgram did: Participants were enlisted as “teachers” while others were enlisted as “learners.” Each teacher was paired with a learner and the learners were to read a list of word-pairs. When the learner was given one of the words in a word-pair, he was to recite the other word. All the learner had to do was give the proper response, but if he failed, the teacher was to administer a shock. The shocks could be gentle, or severe. They ranged up to 450 volts. It was, to all appearances, a test to see how well the learners could learn with this “shock therapy.”
But, in reality, the learners were not being tested at all. It was the teachers themselves who were bing tested. The learning tests were rigged, the shocks were faked, and the learners cries of pain were phony. What Milgram wanted to discover was how willingly the teachers would administer pain. Most scientists didn’t believe more than a small percentage of Americans would willingly inflict pain in such an experiment. What Milgram discovered was that, although some of the teachers did refuse to, many others–fully 60 percent–willingly administered shocks of greater and greater intensity and duration.
Why were they willing to overlook the “pain” they inflicted on the hapless learners? They did this because they wanted to please the scientists conducting the experiment. It was, in other words, to please authority.
Here’s my point: In a courtroom, as soon as the judge, a government employee, asks jurors, the now routine question, if they are willing to bring a verdict of guilty, if the prosecutor proves his case, even if they, the jurors, disagree with the law, the judge is taking the position of the scientist (Milgram) who conducted the test; the jurors are now in the position of the “teachers.”
Now, if Milgram’s percentage held true, and fully 60 percent of the population would bring a verdict of guilty even if they felt the law was wrong–or evil. That, of course, leaves the other 40 percent to vote their conscience. Since it only takes one dissenting juror to hang a jury, the likelihood of a guilty verdict being administered for violation of a bad law should be negligible.
As a mathematician, I can calculate the chance that at least one person on a jury of 12 and would prevent bad laws from being executed. The chances are about 458 to 1 that the average jury would have at least one person who would stand in the way of Americans being found guilty of bad laws. With such odds prosecutors should find it so risky to try people for violation bad laws that they would cease to prosecute them. Legislators should then find it necessary to rescind such laws. It is what the Founding Fathers of this country intended and it was the way the court system in this country originally operated.
But here’s the catch: Today, when judges ask jurors, “Will you bring a verdict of guilty, even if you disagree with the law?” all prospective jurors who say they would not bring a verdict of guilty when they feel the law is wrong are systematically excluded from the jury. This happens today all over America.
And it is not untypical for the judge to go on and extract an oath from the remaining jurors (an oath that is nonbinding, though most jurors don’t know this) to bring a guilty verdict if the prosecutor proves his case beyond a reasonable doubt, even though they may feel the law is unjust.
What this means is that if you yourself are on trial, your fellow citizens who have been allowed to fill the jury box are the “teachers” in Milgram’s experiment who are willing to inflict pain, at your expense, to please authority–in this case, the judge. Furthermore, if you yourself are seated on a jury, it is because the judge has already determined that you are part of that 60 percent that is willing to inflict pain, even when you know it’s wrong. How does this make you feel?