The Fully Informed Jury Association & a new kind of activist
The audience and market for my thesis has been a recurring question throughout my thesis. While focused largely around the justice system, the work I did in the fall ranged from interventions designed to combat problematic aspects (such as voting applications for grand jurors) to products that could be implemented today—no approvals necessary—with the hope of impacting the system from the outside (e.g. temporary tattoos that encourage lawful public protest so as to reduce the number of avoidable arrests for disorderly conduct). Naturally, there are pros and cons to each end of the spectrum. If I design products to be implemented within the system, they can feel unrealistic; how likely is it that this design would make it through the bureaucratic approval process required to put it in place? On the other hand, these outside interventions, while realistic, offer a far more tenuous theory of change.
Giving my thesis work the (working) subtitle "Transforming the Judicial System through Civic Engagement" has allowed me to be clear about the overarching category of my users: average citizens. Though I want to account for their interests and needs, my primary focus is not on the people who work within the justice system—the judges, prosecutors, public defenders, court officers, etc—but on the ways in which average citizens concerned with the problems in criminal justice might be empowered to and be able to make a difference.
Jurors were my point of entry into this whole topic, and remain an important user group for me because of their unique relationship to the justice system. Jury duty is organized, enforced, and codified by government, but it is also the place that average citizens have power to impact that system. Making jurors aware of that power is the mission of the Fully Informed Jury Association (FIJA). The organization seeks to educate the general public as to the rights and responsibilities of jurors and impart this important reframing of the job: A jury does not work for the government, but is rather the people's way of protecting themselves and their fellow citizens from abuse of power by the government.
The least well-known and most powerful right granted is that of jury nullification. This provision permits jurors to vote 'not guilty' or refuse to render a verdict if they believe a law to be unjust or unjustly applied. In my interview with FIJA director Kirsten Tynan, she explained where this provision comes into play:
"The concern I hear most often is that nullification will lead to anarchy—suddenly nobody will be willing to enforce laws for rape or murder. But the reality is that the vast majority of people agree about punishing rapists and murderers; those cases aren't affected. It's the non-violent offenses, such as possession of tiny amounts of marijuana, where the average citizen doesn't think punishment is in order."
If jurors know their right to nullification, they can make an impact by making these cases harder to prosecute. Jury duty needs to be—for lack of a better word—rebranded as a power and privilege, a job of real consequence. If informed, people can learn how to "survive voir dire," making themselves less likely to be eliminated from the jury pool by attorneys.
I have interviewed a number of jurors in the past few months, and intend to conduct more interviews. I have six interviews set up for next week with former colleagues, all of whom have served on either grand or petit juries in New York in the last few years. I myself have experience as a grand juror. However, I realize I am capturing a very specific subset of jurors, who are compensated by their employers for their civic duty. In creating a personas for jurors, I think it will be important to capture the perspective of someone who feels generally disenfranchised by government, and to whom jury duty is a real burden. I haven't yet arrived at a way to find this perspective, but am planning on casting a wider net by asking for interviewees on Facebook and Craigslist. Among the questions I want to ask them:
- Do you remember being informed about jury nullification?
- What do you feel your role is as a juror?
- How did it affect your life to do jury duty? Did you have to make different arrangements for transportation? Childcare? Income?
- How could jury duty be better?
- What did you expect when you went to jury duty?
- What surprised you?
- Who did you perceive as having the most power?
Within the overarching category of potential, current, and future jurors, there is another user group that I have prioritized, whom I refer to as a "new kind of activist." These are the people who have been mobilized by the election of Donald Trump. These are generally young (20-30s), educated, privileged, progressive urbanites. These are people who care about civil rights and sustainability but have rarely if ever done anything about it. These are not people naturally drawn to protest or civil disobedience. For the past eight years, these people have generally felt that we were on the arc of progress thanks to Obama. While they could recognize problems with the system and wanted to make a difference, they didn't feel great urgency to take action themselves. I am one of those people.
That changed on November 9th, 2016. I began sending and receiving emails about how to understand what had happened, how to get out of our filter bubble, how to take action. These are people who want to do something, but want to make sure it's the right thing, the most effective use of their time. This persona pushes me to find ways of introducing more subtle ways of changing the system—it can't be all about marching in the street or phone-banking every day. I have access to a lot of these people. Questions for them include:
- What problems, if any, do you perceive in the criminal justice system?
- Do you think you can impact the system? How?
- Have you ever served as a juror?
- What level of engagement/action are you willing to take?
- What are you afraid of?
- What types of activism can you think of?
My third user group is people who work for organizations like FIJA, the Fund for Modern Courts, or the Center for Court Innovation. These are individuals familiar with the system, but working to foster greater transparency, increase procedural justice, or build alternative judicial processes. I have spoken to a number of these individuals, and have a few more interviews lined up, but have a new set of questions for them:
- Do you think average citizens can be a part of criminal justice reform?
- What is a common misperception about the justice system that you would like to correct?
- What kind of reform do you see happening within the current system?
- What will the most tangible effects of a Trump administration be on criminal justice locally?
- Are there overlooked ways of helping?
- If you could intervene anywhere in the system, where would you intervene? Why?
- Do you know of any examples of activism or community work outside the justice system that has had an impact within?
I can't end this without saying the unsaid: I am not choosing to focus on defendants or the incarcerated as my primary users. This is a decision I grapple with, as it seems like any intervention in the criminal justice space should really be trying to help those most affected and disenfranchised. I am aware of the systemic racism and discrimination of the current system. I believe that because it is systemic, solutions will need to get at the incentive structures in place.
One way to change default behavior and reroute the path of least resistance is through community involvement and public outcry. As Marie Gottshalk writes in Caught: The Prison State and the Lockdown of American Politics, framing the problem of mass incarceration as an economic or law-and-order problem "is wholly inadequate to address the enormous problems facing the country or to mobilize the wide swaths of the public to bring on the convulsive politics from below that we need to dismantle the carceral state and ameliorate other gaping inequalities." My work seeks to mobilize that "wide swath" by presenting and inventing ways to intervene as a citizen. And I don't think this type of civic engagement should be limited to criminal justice; I hope that my research and learnings here will allow me to apply this thinking to other verticals in the future.