Juries are essential to democracy, and they are under threat in America

By AAROL Member Nicolas Mansfield.

Last month a trial jury in the federal district court of Washington, DC acquitted a man for throwing a sandwich at a federal agent. The case had become a local cause célèbre because it took place during the Trump administration’s takeover of local law enforcement in the nation’s capital and the defendant said his act was in protest of the administration’s policies. The Justice Department initially sought to charge the sandwich thrower with felony assault, but a federal grand jury refused to indict him, and he was ultimately tried on a misdemeanor charge. Washington, DC grand juries have also refused to indict in other recent cases with political overtones, as have federal grand juries in Los Angeles, Chicago, and Northern Virginia. To grasp how exceedingly rare such refusals are, consider that in 2016, out of 155,615 federal criminal matters concluded, grand juries said no in only six of them.

This unusual uptick in grand jury independence shines a useful spotlight on the underappreciated institution of juries (both the grand jury and the trial jury) in American civic life. While the separation of powers enshrined in the Constitution is rightly hailed as a crucial check on the excessive exercise of power by the executive, legislative, or judicial branches of government, the jury is a more ancient form of restraint. Established in the Magna Carta, the right to a trial by jury checks the power of the state to convict and punish. To cite a few early examples of jury independence, in 1554, an English jury refused to convict Sir Nicholas Throckmorton of treason against Queen Mary I, and in 1649, a jury acquitted John Lilburne for his part in inciting a rebellion against the new Commonwealth. Juries don’t just restrain the executive, but may also restrict the application of laws enacted by the legislature that they deem unjust. In the 1850s, juries in the northern American states often refused to convict people charged under the Fugitive Slave Act with helping enslaved individuals escape via the Underground Railroad. During Prohibition, when many Americans opposed laws banning alcohol, juries routinely nullified charges against bootleggers, speakeasy owners, and ordinary citizens caught drinking.

Beyond serving as a brake on state power, juries are also deeply intertwined with democracy itself. As I noted in my recent paper, The Jury: Global Democracy’s Secret Weapon, former British territories that retained the jury system after they became independent enjoy much greater political and civic rights on average than those territories that did not do so. As Alexis de Tocqueville noted, juries serve as “schools of democracy,” instilling important civic virtues in jurors—such as deliberation and responsibility—that are essential for democratic citizenship. Research has shown that serving on a jury in America makes previously infrequent voters more likely to vote in future elections, and former jurors pay increased attention to news media, participate more frequently in conversations with neighbors about community issues, and become more active in charitable group activities.

Unfortunately, this nurturer of democracy and bulwark against abuses of power by the state is under serious threat in America. Over the last two decades, the nonresponse and failure to appear rate for jury summonses has more than doubled. At the same time, the rate of jury trials has been decreasing sharply. A 2023 survey conducted by the National Center for State Courts (NCSC) found that the rate of jury trials per 100,000 population in the United States dropped from 58.6 in 2007 to 37.7 in 2019, a 26% decrease. Indeed, the NCSC has referred to the current challenges facing jury trials and juries in America as “unprecedented.” The combination of fewer people responding to jury summonses and fewer jury trials means fewer Americans are benefitting from the unique civic experience of serving on a jury. Given what we know about the civic importance of jury service, it is perhaps no coincidence that the decrease in jury trials and mounting resistance to jury duty over the last few decades correlates closely with the decrease in public respect for government.

The current state of affairs demands action. Greater emphasis on civic education—and in particular the role of juries—is essential, including strengthened jury orientation programs. Consequences for failure to respond to jury summonses must be significant, while at the same time efforts should be made to improve the juror experience.  The jury system is every American’s birthright. Let’s not squander it.

Nicolas Mansfield is a lawyer who has designed and managed international rule of law programs for the past three decades. He previously served as a prosecutor in the U.S. Department of Justice and as the Attorney General of the Republic of Palau. He is a graduate of Yale University and the University of Michigan Law School.

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