A credible case can be made that the way it was *supposed* to work here is that before govt can do you any significant harm (eg, incarceration, forfeiture, any non-trivial financial penalty) it has to go to trial and get a jury verdict. The implications of that are staggering. /1
First, trials are expensive, inconvenient, and uncertain. It’s basically impossible to impose any kind of punishment/penalty on a mass scale if every case has to go to trial. This means govt has to focus on the small # of truly bad people rather than mere rule-breakers. /2
Second, people are going to get sick of being called for jury duty to adjudicate ticky-tacky BS like low-level drug sales and will send a message to prosecutors and legislators to knock it off. Like in this story: nola.com/news/courts/ar… /3
Third, people will get a chance to explain and contextualize their conduct to a group of neighbors, who in at least some cases are MUCH more likely to sympathize than some captured sycophant of an administrative law judge. /4
Finally (for now), the more often they serve on juries, the more people will learn the various ways govt tries to cheat its way around a fair adjudicative process such as threatening people with massively disproportionate harms if they refuse to waive their right to a trial. /5
This final point may be the most important: Widespread realization that govt cheats relentlessly in adjudicative proceedings—using captured in-house “judges,” imposing massive trial penalties, demanding lifetime gag orders as a condition of settlement, etc.—would radically /6
Reset the entire calculus of govt-vs-citizen litigation. Jurors would quickly learn what kinds of govt chicanery to look out for and would protect fellow citizens from it. Govt would have to radically change its litigation tactics to avoid censure. “Inconceivable!” you say? /7
Not to the Founders. They went to extraordinary lengths to put citizen participation at the very heart of the administration of criminal justice. So why not try their plan? We might even like it. /end
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