by Albert W. Dzur. New York: Oxford University Press, 2012. 221 pages. Hardcover $55.00. ISBN 9780199874095.
Reviewed by Matthew Dean Hindman, Department of Political Science, The University of Tulsa. Email: matt-hindman [at] utulsa.edu.
Albert Dzur’s Punishment, Participatory Democracy, and the Jury is a book that contributes to several ongoing debates among social scientists and legal scholars. As a work of empirical democratic theory, the book encourages a rethinking of how we have come to manage our increasingly bureaucratized and professionalized political institutions. As a work of normative theory, it goads us to alter our conception of “the citizen” from that of a passive constituent who delegates authority to elites to that of an active agent essential to collective governance. At its core, though, Punishment, Participatory Democracy, and the Jury is a critique of the United States’ criminal justice system, focusing specifically on the dynamics of the courtroom. Dzur’s most fundamental aim is to revive and transform a revered institution – the jury – that has gradually fallen into disuse as courtroom professionals have taken on a greater role in the administration of justice.
Dzur’s main argument is complex ‒ speaking as it does to disparate literatures ‒ but clear: The American justice system has not only given rise to a system of mass incarceration, but it has done so in a manner that has subdued citizens’ capacity for participatory decision-making, moral compassion, and collective ownership of the laws under which we live. While the jury was once among the few institutions where lay citizens came together to carry out the civic engagement that justice demands, juries in the United States now hear only about 5% of all court cases. Instead, courtroom professionals ‒ including most notably prosecutors and judges ‒ have taken on greater roles; this newfound power has not only enabled them to make important decisions affecting the lives of criminal defendants, but the removal of jurors from the courtroom has relieved legal professionals of the necessity to communicate the law and its moral intent in plain language. Particularly as overburdened public defenders have taken on the bulk of criminal cases, defendants have come to be viewed as caseloads and statistics (by prosecutors, defense lawyers, and judges alike) rather than as citizens deserving of a fair trial in front of a jury of her or his peers. What remains, then, is a system of justice whereby specialists reign, the law remains depersonalized for most lay citizens, and justice is not dispensed in any meaningfully democratic way.
Central to this argument, then, is not only a concern for victims and offenders, but a concern for the rest of us as well. The cultivation of more lay participation in the American criminal justice system, Dzur argues, would not only produce better courtroom decisions than those of professionals, but it would produce better citizens as well. Juries ensure that members of a community join together as collaborators, bearing witness to the suffering of victims and defendants alike. Such a strengthening of the public element of criminal justice, Dzur perhaps optimistically asserts, could foster a greater participatory ethos and a heightened sense of shared responsibility for the laws, policies, and structures through which cases are adjudicated. Indeed, even in today’s age in which the jury is bureaucratically managed and “comes with tedium, bad coffee, uncomfortable chairs, and banal conversation,” former jurors tend to participate in politics more than people with similar backgrounds who have not experienced jury service (p.11). Throughout the book, Dzur invites readers to imagine how jury service might positively impact public life if we were to empower juries to function in truly deliberative, democratic ways that push their participation beyond the bureaucratic constraints within which they must currently operate.
In pursuing this argument about citizens’ capacity to administer justice, Dzur must immediately confront a line of skepticism: Would increasing the role of lay citizens in the courtroom actually ameliorate trends toward hyper-incarceration? Indeed, as Dzur acknowledges, many criminologists have come to view lay participation as a cause of the United States’ bloated penal state rather than a solution to it. After all, media sensationalism and the broader “tough on crime” ethos that has characterized American conservatism for at least two generations would seem to evidence a public that remains largely unsympathetic to offenders. As Dzur notes, scholars will often point to countries with low incarceration rates like Canada, Germany, and the Scandinavian countries as templates to follow; these countries employ a technocratic rather than participatory approach to criminal justice. But “penal populism,” Dzur asserts, results from a dearth of democracy, not a surplus of it. That is, the rise of penal populism – perhaps best exemplified by California’s “three strikes” movement – stems from a failure to integrate constructive, dialogical procedures into the courtroom. Due to these failures, Dzur claims, “tough on crime” advocates are often able to depict a caricatured view of “the government” as an external nemesis rather than a vehicle for collective governance. (It is not hard to view the Tea Party movement’s austerity-driven aims in the same light, in which a disaffected electorate participates in governing precisely by opposing government.)
Certainly, Dzur is not the first to extol the virtues of participatory democracy, nor is he the first to unveil the counter-democratic tendencies of many of our purportedly democratic institutions. Likewise, he is not the first to theorize about the citizen’s relationship to government and the ways that political institutions impact that relationship. However, his focus on the jury as a potential source of civic revitalization is in some ways strikingly uncharacteristic of many of the democratic theorists upon which he builds. Indeed, Dzur seeks to “move beyond the idea of a participatory democracy that only flowers outside institutions,” bringing the spirit of extra-institutional democratic capacity – espoused by the likes of Sheldon Wolin – into the courtroom (p.56). Democracy, for Dzur, need not exist only as a “fugitive” as it does for Wolin (1994) and other democratic theorists; institutions can themselves be catalysts of democratic reform, if only we embrace them and experiment with them – a somewhat refreshing outlook amid a sea of skepticism among his peers.
In calling for a reimagined jury, Dzur demonstrates that his view of the jury is not a conservative one. He does not harken back to a “golden age” of jury service; indeed, much of the book is aimed at advocating for a radical restructuring of criminal proceedings. In doing so, Dzur describes the jury as a place where citizens can investigate and communicate new ways of thinking about justice, thereby safeguarding against the “moral calcification” that results when courtroom professionals administer justice in the absence of community-driven moral dialogue (p.101). On this point, Dzur acknowledges that the routinization of contemporary jury service renders this safeguard largely ineffective, as most juries are not free to communicate with victims, defendants, or even each other throughout much of the trial. Dzur spends several chapters reviewing a number of reforms, many of which employ a dialogic rather than adversarial legal process, without clearly endorsing any singular vision for the future of American criminal justice. Readers may be left wondering what, exactly, Dzur thinks that courtroom justice ought to look like; for his part, Dzur seems content to offer a broad framework for reform aimed at moderating the carceral tendencies of the American justice system. Much of the rest, presumably, can be left to citizen experimentation. For that to happen, however, we must first re-position the jury at the center of the criminal justice system.
Though Punishment, Participatory Democracy, and the Jury advances our understanding of the jury’s latent radical democratic potential, the book ultimately suffers from the lack of a sustained, substantive discussion of race, class, gender, and inequality, including the manner in which these markers of identity intersect. This omission is particularly glaring given that the courtroom is, historically and presently, an institution that serves as both a site and a symbol of deep racial inequalities. While Dzur makes note of such disparities occasionally throughout the text, discussions of unequally administered justice appear tangential to his core claims. To be sure, Dzur would have been wise to engage with the recent scholarly critiques of American criminal justice that have convincingly argued that long-lasting racial inequalities are central to our understanding of American justice; one influential book has gone so far as to argue that contemporary criminal justice exacerbates a “New Jim Crow” (Alexander 2010). With African-Americans incarcerated at a rate of roughly eight times that of white Americans,disrupting families and placing ex-felons in a precarious position with respect to future employment, such inequalities should be more than an afterthought within any text about American criminal justice (Western 2006).
Along these lines, Dzur leaves a number of key questions underexplored. How important is a racially representative jury? Has the racial makeup of juries contributed to, or perhaps mitigated, the rise of black imprisonment? How might we alter jury selection practices to give defendants a truly fair trial? (On the important point of jury selection, Dzur again explains very little even as he argues at length about the necessity of jury service.)
Even with these questions unanswered – and for that matter, unasked – Punishment, Participatory Democracy, and the Jury stands as a significant assault on the technocratic trends taking place within the American criminal justice system. As Dzur notes, though, democratic reforms require more than an academic movement. Extra jury service – even if in a repackaged, empowering form – seems far down the list of the public’s political demands. One wonders what conditions might spur a greater enthusiasm to serve.
Alexander, Michelle. 2010. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
Western, Bruce. 2006. Punishment and Inequality in America. New York: Russell Sage Foundation.
Wolin, Sheldon S. 1994. “Fugitive Democracy.” Constellations 1: 11-25.
Copyright 2013 by the Author, Matthew Dean Hindman