The Jury as a Translation of Democratic Participation and Political Conflict

Abstract

A long tradition in scholarship champions the juror as an important manifestation of democratic participation. Some scholarship advances the jury as an expression of and method to instill democratic duty and produce lay participation at the individual level (Dalton 2008; Hans 2007; Fukurai, Knudtson, and Lopez 2009). Other scholarship views the jury as an institutional manifestation of deliberative democracy and as a method to facilitate consensual democracy (Gastil et al. 2002; Smith and Wales 2000; Hans, Gastil, and Feller 2014; Warren and Gastil 2015). Both approaches view the jury as a mechanism to establish further democracy through participation in democratizing societies. In her presidential address, Valerie Hans offers the useful concept of translating to understand further the adoption, expansion and decline of trial by jury in established and developing democracies. I use her deployment of this term to argue that the implementation of liberal democratic structures in new democracies opens new opportunities to translate the jury system into and onto new democratic societies.Hans's address is grounded in the idea of lay participation, but she also alludes to the concerns that policy makers have about the strength and vibrancy of this participation (31). This concern opens questions as to policy makers' decision-making processes to translate trial by juror into the fabric of polities. I would argue here that the aims of policy makers are not always democratic. Nonetheless, the consequence of the translation of trial by jury furthers democratic development. To express this idea I examine specifically the adoption (or attempt to adopt) trial by jury in three countries: Nicaragua, Mexico and Russia. These three countries implemented the process to adopt trial by jury between 1992 and 2008. In all three cases, governments adopted or attempted to adopt the jury trial in the aftermath of control of the state apparatus by a hegemonic political party. The strategic decision to adopt trial by jury was partly an attempt to remove legal decision making from the sole control of a state that was occupied by officials who the new government believed retained allegiance to the prior government.In Nicaragua, the Popular-Socialist Sandinista (FSLN) government partly abolished the jury trial in 1988 because of juries' tendencies to acquit, particularly to acquit poor defendants (Wilson 1990). Juries during the Revolutionary period use the intima conviccion (innermost belief) standard to guide deliberations (Wilson 1992: 359). The government prior to the Sandinista state (the Somoza dictatorship 1933-1979) had constitutionally established trial by jury, but rarely were people tried-by-jury in civilian criminal courts during the period of the Somoza regime.The Sandinista Government did embrace the concept of lay participation in legal decision-making process. As Hans's address highlights, the jury is only one of several forms of lay participation in legal decision-making. The Sandinista government attempted to institute the concept of lay participation by allowing non-attorneys to populate the lower levels of the judicial hierarchy (Walker 2003). Jackson and Kovalev (2016) point out that the lay-judge mechanism has been adopted in some European countries to replace juries as a mechanism of lay participation.The Sandinista Government built its justice system on the idea of popular justice. It, nonetheless, abolished trial by jury. Indeed, the Government's overall lay participation program failed. Beyond juries' tendencies to acquit, the Sandinista Government constructed criminal justice system on a socialist model of justice that requires a machine-like system of judgment and punishment (Ventura 1971: 101). Because the Sandinistas opted for the socialist model of justice, they viewed the jury system as flawed in its ability to efficiently allocate judgment and punishment. In addition, the system requires judges, even lay-judges, to interpret cases and to base their decisions on the norms of formal law, rather than popular sentiment (McDonald and Zatz 1992: 289). …