Politics

Jury Duty: Antiquated, Wasteful, and Unjust

Previously I’ve pointed out the high cost of justice (The Justice is Too Damn High! – Gawker, the High Cost of Litigation, and The Weapon Shops of Isher) and the consequent failure of the justice system to adequately protect citizens, both the accused and the victims of crime.

What’s free tends to be wasted. And when citizens are commanded to take days off from their work lives for jury duty, their compelled service is taken for granted by a system which pays next to nothing for their time ($15 a day in California, about 10% of the minimum wage in cities like LA and SF.)

As another monopoly government service, justice suffers from the lack of innovation and cost control seen in similarly bureaucratic services like schools. Each juror who has their time wasted could take this up with their city or county reps and agitate for reform, but it’s a small issue compared with the other reasons to vote, and so there’s effectively very little accountability. It’s much easier to claim prejudice or conflict to avoid serving. In many parts of the US, 70% or more of registered voters simply don’t answer their juror summons.

This results in jury pools that aren’t representative of populations. Poorer people, minorities, and young people are underrepresented. Justice for people culturally different from typical juries can suffer because there are fewer jurors likely to understand the cultural milieu of the defendants.

I recently served as an alternate juror for a murder trial — four men charged with gang-related murder with a possible sentence of life without parole. The case took ten days to wrap up, with the jury coming to a unanimous verdict of guilty after a day of deliberations. The cultural milieu was street gangs in a mostly-Latino area of the Coachella Valley (which includes both wealthy retiree communities like Palm Springs and Indian Wells and poor, higher-crime towns like Desert Hot Springs and Indio.)

Over 200 people were called in the first day — which was only to present the tentative trial schedule and ask for any reasons to be excused. Those who didn’t ask to be released could have stayed home and answered an email questionnaire, so around 100 people had one day wasted.

The next day the remaining 100 people arrived at 9 AM and spent the entire day watching a subset of 20 people answer voir dire questions. Hours later six or eight were excused and substitutes were questioned. By the end of the day selection of twelve jurors and four alternates was complete. The 80 or so not selected were excused.

So far we have around 200 workdays wasted, worth about $300 a day in salary and benefits (and costing even more in disruption, with the saving grace that some were retired.) Those 200 wasted jury duty days generated around 200 unnecessary commutes averaging 20 miles round-trip, for a total of 4000 miles, c. 200 gallons of gasoline at $3 a gallon, $600 and lots of greenhouse gas pollution. So that people could sit in a room trapped for hours. Call it upwards of $60,000 of wasted time and materials.

Many jurisdictions have rationalized this process, setting the trial schedule in advance and using email to preselect potential jurors for more extensive void dire. While judges may worry there won’t be enough jurors after voir dire, the opposite extreme of abusing citizen resources by hauling in a hundred additional people is only possible because their time costs the system nothing (jurors get zero compensation for the first day in California.)

Harm to Justice

Seth Stevenson in the 3-5-19 Slate article “Guilty” (a very long read) writes:

In 1998, I helped convict two men of murder. I’ve regretted it ever since. The case was, in some ways, simple. Twenty-two–year-old Maurice Douglas and 17-year-old Dominic Gibson stood atop a hill in Washington, D.C., on a drizzly night in April 1997. Someone shot down the slope of the hill, killing an off-duty police officer who’d been standing at the bottom.

At first, I thought my job as a juror would be to figure out who’d fired a weapon. Was it Maurice? Dominic? Both of them? But then it became clear that the answer to this crucial question—who killed the police officer?—didn’t matter in the eyes of the court. And as the trial wrapped up, I realized I was about to convict two men of murder, only one of whom I thought was guilty.

The case I was on was similar if a little less ambiguous: the four accused left ample evidence of a joint plan to find and attack a member of another gang for revenge and to uphold the honor of the group and their friends. My jury was largely old, white-collar, and white. The defendants felt justified by honor considerations that made sense in their cultural milieu; like Italian-American communities of the last Prohibition era, their neighborhoods were largely working-class and “respectable,” but with enough criminal, fringe, and gang elements that nearly everyone had friends or relatives involved. Honor and respect (and violence to enforce the rules) were understood and within the community, their activities would be decried and whispered about but not openly opposed. Because police cannot protect everyone from reprisals.

Stevenson’s case also involved “aiding and abetting,” or joint enterprise theories of guilt. This is embedded in English common law and recognized as fair generally: if you knowingly help someone commit a crime, you are equally guilty. Stevenson feels all sorts of noblesse oblige white liberal guilt about convicting the accomplice of murder and putting him away for 30 years; he eventually turns it into a long story about his feelings, coming down against such severe sentences for passive participation in murder.

In the case I was on, the real jurors convicted in one day, and I think rightly so because three of the four showed ample evidence of planning to commit mayhem foreseeably ending in death. The fourth was a bit less certain, but there weren’t any other circumstances that would lead him to join the others in a car with loaded weapons ready that made any sense.

As an alternate I was not involved in deliberations. I think I would have wanted longer to crosscheck the evidence — some jurors may have just wanted to get it over with, but I would have wanted to be sure. Neither defendants nor victim were angels, and it’s possible that under different circumstances the victim would have been the one on trial — but he wasn’t. The tendency of the middle and upper-class jury to not see the accused through a dispassionate lens because of cultural differences wasn’t a factor in my case, though it may have been for Stevenson’s. For poorer people like these living in a lower-class neighborhood, less time and money is spent on the prosecution, and even less on defense. OJ would never have escaped a guilty verdict if this had been the standard.

The jury was provided with a package of evidence (including damning videos of the defendants meeting in convenience store parking lots, changing cars at a school nearby, and a glancing view of the attack on the victim’s house including muzzle flares and ricochets off the street.) No transcript was provided (I was surprised to hear the jury would have to request pieces of testimony to be *read back* to them rather than receiving a full transcript.) The partial and disorganized documentation would have made it a daunting task to really confirm everything, and the system just wants you to go along.

In most jurisdictions, courts prefer jurors hear live testimony once and never get to review it, but they pretend the jury can have pieces read back to them on request. Some verdicts have been overturned on the theory that reading (or reviewing video) of selected testimony is prejudicial, some have been overturned because the judge claimed there was no transcript available. A few places are experimenting with full video and giving the jury complete access to the recordings. It’s ridiculous that people are being (possibly) railroaded for the convenience of the system. This case was only easy because there was so much evidence of a conspiracy to kill. In other cases with limited money for investigation and defense, the temptation to go along with the prosecution quickly to escape jury hell must be enormous.

Heinlein suggested semi-pro jurors in The Moon is Harsh Mistress. This would be a corps of people who serve on juries for pay, possibly rated and qualified by other jurors so the “best” jurors get called more frequently. The schizophrenic attitude of our system where the ideal juror theoretically knows nothing and sees nothing but what the judge and attorneys tell them while supposedly acting as logical evidence-weighers really leads to superficial decisions. Jurors seem to be there only to legitimize the outcome, under duress. The *ideal* is moderately educated citizens free of prejudice, but forced service starts you off with a prejudice to go along to escape.

There have been suggestions to run trials by prepackaging depositions, video testimony, and arguments. Jurors now are not allowed to ask questions (in rare circumstances they can ask the judge to bring up a question on their behalf) or participate at all, so this loses almost nothing (the silly claim that live testimony viewing is somehow more authentic and that video can be prejudicial is belied by the number of times jurors are asleep or too uncomfortable to pay attention because they haven’t been allowed a bathroom break for two hours.)

The prepackaging would edit out the questions where the judge has sustained objections, wasted time could be edited out by agreement with defense, etc etc. The jury members in a complex case wouldn’t lose ten or more days of work, but get to review the evidence in a day or two then deliberate with full access to the record, which is released to the public (with bits redacted by the judge if necessary.) This packaging can be done by paralegals overseen by the judge at a cost paid for by savings in traditional court expenses.

The cost of trials is staggering and the results are sub-par, as is true with most traditional monopoly services. There’s little incentive to streamline or improve. Because full trials are so expensive and time-consuming, most convictions are by plea bargain, itself a blot on justice which forces the innocent to plead guilty to avoid far worse punishment and then puts them at risk of becoming permanently part of the criminal underclass and wards of the state, depriving them and the rest of us of their productive lives.

Streamlining trials and broadening the jury pool to be both more experienced and more motivated by making jury duty voluntary and well-paid will save everyone — prosecutors, judges, defendants, and defense attorneys — the deadly boring hours spent listening to testimony, jury instructions, waiting through recesses, and wrangling over schedules. And reducing the costs of trials will allow less use of plea bargaining and likely a better quality of justice.

More reading on other topics:

Update: California High-Speed Rail Nearly Dead
Regulation Strangling Innovation: Planes, Trains, and Hyperloop
Captain America and Progressive Infantilization
The Great Progressive Stagnation vs. Dynamism
FDA Wants More Lung Cancer
Corrupt Feedback Loops: Public Employee Unions
Jane Jacobs’ Monstrous Hybrids: Guardians vs Commerce

The Tragedy of the Common Need

You’ve probably heard of the tragedy of the commons — first discussed as early as 1883, but more recently popularized during the ecology craze of the late 60s by Garrett Hardin. A shared resource like community grazing land, fish in the sea, or unpolluted air tends to be overused and destroyed by individuals who can gain from using it because it is not in any one user’s interest to limit their use to avoid damaging the resource. Common grazing areas would be trampled and muddy, fish schools would disappear from the sea, and air would grow more and more polluted when no one paid or accounted for use of the resource. Now in real situations like common grazing areas, it was often the case that formal or informal rules were established and enforced by the community to limit overuse; this sometimes works well and sometimes fails completely when there are no realistic means of enforcement.

One solution is property rights — if the common is turned over to an owner or owners, they have an incentive and are permitted to charge for use and exclude those who will not pay. In the case of grazing rights, the shepherd might be asked to pay a few coins to let his or her sheep forage on the land for a few hours. By taking note of the state of the land and refusing to allow grazing or increasing the charges when the land is threatened by heavy use, the owner can establish a sustainable usage pattern and maximize revenue from the property to be used for maintenance (and to pay the toll collector.)

This is one kind of externality — any one person’s use of the limited resource impinges on others, so allowing free use damages the total output of the system and hurts others who might have benefitted from using them. Absent such externalities, free-market voluntary exchange as thus simplified tends toward generation of Pareto-optimal solutions — everyone’s utility is maximized and any divergence from the solution makes at least one person worse off without making anyone else as much better off. Of course such perfect markets and conditions of knowledge don’t occur in real life, but many simple markets come close.

The tragedy of the commons is what happens when there is a non-excludable but exhaustable good: one can’t exclude some users (or charge them, since exclusion is the enforcement condition for charging for use or consumption.) There are other kinds of externality, though: public goods, which are not only non-excludable but aren’t depleted by overuse. Examples would include most goods which can be duplicated at no cost, like news or (today) free Internet writings. All benefit from their production, but since once created these goods are shared easily and can’t be charged for, economists would argue less of such goods are created than would be optimal. This is one argument for public education: though every person benefits directly when they pay for their own education, society as a whole benefits if education is widespread and available also to those who can’t afford to pay for it themselves. This is the argument of communitarians — they believe it is in everyone’s best interest to tax some to fund goods for all, to be shared with everyone. There are other methods for paying for public goods, like advertising sales and charity, but these alternate funding mechanisms may distort the quality of the good (as advertising has tended to create a lowest-common-denominator level of quality in those goods like network TV and clickbait sites that rely on ads.)

Now what about “common bads” — products or actions that harm individuals, like violence or theft. No one wants to be a victim and sensible people will avoid the bads, but community bads like street crime can’t be completely avoided by one person’s payments or actions. A police force addresses this common bad by suppressing crime at common expense, and so that too is another proper function of an efficient government.

So economists argue endlessly about aspects of these “corner cases” where complete information and free markets can’t create optimal exchange networks because of externalities. The argument for a government, or “public sector,” is that only a common authority can create conditions where these problems are addressed, enforcing contracts, law, and property rights to correct “market failures” and allow everyone to go about their business unharmed by the depradations of others that would infringe on their rights.

But of course there is no perfect government. The individuals who manage and staff public agencies are motivated by their own self-interest as well as any idealism about the General Good they may have, and over time the rationale for their actions may be enlarged beyond simply mediating necessary conflicts between individuals and their rights to free action and property. Once these areas are dominated by a “free” government service, the private competition shrinks or dies completely, and can never return to compete. This is the ratchet effect, where movement goes only one way — toward larger state control — making reform difficult.

This tendency to expand government into what would otherwise be private and mostly efficient decisions is most easily combatted by supporting a constitution that specifically states what areas government should act in, and has a mechanism to prevent encroachments outside those areas. Our judicial branch has failed to strike down overreach, especially after the New Deal quashing of the Supreme Court’s pushback against the administrative state. So Step 1 is to appoint new justices who are more skeptical of well-intended but improper laws and regulations.

There is a more general agency problem– those elected or hired to decide for the people have interests which do not entirely reflect the people’s, and will tend to act to benefit themselves first. This is the primary reason why government-provided services can’t compete with private services in efficiency — in private services we fire the unsatisfactory providers and hire new ones with every purchasing decision, whereas government services are usually monopolies and the connection between customer satisfaction and revenue is broken. Ask veterans how happy they are with VA provision of healthcare and you’ll get some unprintable answers because of the thoughtless bureaucracy they have to deal with to get care.

Over time public provision of shared goods creates a class of substandard, even dangerous corrupt goods that crowds out private and better equivalents. In a laissez-faire world, mass public education and healthcare seem like improvements, but they crowded out the private systems which had grown up before the time they were introduced, and few now remember the thriving voluntary welfare organizations and schools. Lacking much private competition, these public monopolies are now mediocre and doing great harm to, for example, inner city school children who never learn to read, write, and compute, but are graduated anyway. All forms of public news, education, and healthcare are used to mold the views of future voters toward an even larger state, and narrow interests like teacher’s unions capture their institutions and prevent improvements or competition. This is ultimately damaging to democratic decisionmaking, as voters learn so little about their government in public schools that they are easily demagogued into supporting a larger state. The usual argument for public schools was that they provided a common education required for high-quality citizen involvement–but as we have seen, they have been turned into indoctrination centers, with neutral history, civics, and science education squeezed out for political programming.

The public support for government emergency assistance, medical care, old age support, and security led to divorcing of the provision of these from the family or clan networks that once provided them, as police and a justice system took over from blood feuds and vendetta in keeping order between families. But the consequences are a change in incentives: instead of loyalty to family, loyalty to state and party came to be as or more important. And now we contend over politics because so much of life is now determined by government. If you ignore politics, your life, your property, and your children will come under control of others who don’t know you or yours at all.

More reading on other topics:

Jane Jacobs’ Monstrous Hybrids: Guardians vs Commerce
The Great Progressive Stagnation vs. Dynamism
Death by HR: How Affirmative Action is Crippling America
Death by HR: The End of Merit in Civil Service
Corrupt Feedback Loops: Public Employee Unions
Death by HR: History and Practice of Affirmative Action and the EEOC
Civil Service: Woodrow Wilson’s Progressive Dream
Bootleggers and Baptists
Corrupt Feedback Loops: Justice Dept. Extortion
Corrupt Feedback Loops, Goldman Sachs: More Justice Dept. Extortion
Death by HR: The Birth and Evolution of the HR Department
Death by HR: The Simple Model of Project Labor
Levellers and Redistributionists: The Feudal Underpinnings of Socialism
Sons of Liberty vs. National Front
Trump World: Looking Backward
Minimum Wage: The Parable of the Ladder
Selective Outrage
Culture Wars: Co-Existence Through Limited Government
Social Justice Warriors, Jihadists, and Neo-Nazis: Constructed Identities
Tuitions Inflated, Product Degraded, Student Debts Unsustainable
The Morality of Glamour

On Affirmative Action and Social Policy:

Affirmative Action: Chinese, Indian-Origin Citizens in Malaysia Oppressed
Affirmative Action: Caste Reservation in India
Diversity Hires: Pressure on High Tech<a
Title IX Totalitarianism is Gender-Neutral
Public Schools in Poor Districts: For Control Not Education
Real-Life “Hunger Games”: Soft Oppression Destroys the Poor
The Social Decay of Black Neighborhoods (And Yours!)
Child Welfare Ideas: Every Child Gets a Government Guardian!
“Income Inequality” Propaganda is Just Disguised Materialism

The greatest hits from SubstrateWars.com (Science Fiction topics):

Fear is the Mindkiller
Mirror Neurons and Irene Gallo
YA Dystopias vs Heinlein et al: Social Justice Warriors Strike Again
Selective Outrage
Sons of Liberty vs. National Front
“Tomorrowland”: Tragic Misfire
The Death of “Wired”: Hugo Awards Edition
Hugos, Sad Puppies 3, and Direct Knowledge
Selective Outrage and Angry Tribes
Men of Honor vs Victim Culture
SFF, Hugos, Curating the Best
“Why Aren’t There More Women Futurists?”
Science Fiction Fandom and SJW warfare

More reading on the military:

US Military: From No Standing Armies to Permanent Global Power
US Military: The Desegration Experience
The VA Scandals: Death by Bureaucracy

Harvey Weinstein: Abusive Attachment?

I’ve had a few questions about Harvey Weinstein — like, what is his attachment type? Are abusive Lotharios dismissive-avoidant, or what?

If you haven’t read them, here are a few background stories:

“From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories” – The New Yorker, Ronan Farrow

“The Human Stain: Why the Harvey Weinstein Story Is Worse Than You Think” – The Weekly Standard, Lee Smith

Because of his loss of power recently, he is no longer able to shield himself or punish accusers as he did when he was at the center of motion pictures and casting decisions. From Virginia Postrel’s Bloomberg story “Why Weinstein Held On For So Long and Fell So Fast”:

Communism was considered invincible. Then the fall of the Berlin Wall started a domino effect that brought down six Soviet satellites in quick succession, and soon after the Soviet Union itself. Though communism’s failures were widely understood, no one thought it vulnerable to street demonstrations. In East Berlin in 1953, Hungary in 1956, and Czechoslovakia in 1968, it had demonstrated a willingness to crush dissent brutally. Moreover, for decades on end, the members of communist-ruled societies had displayed a remarkable tolerance for tyranny and inefficiency. They remained docile and even outwardly supportive of the status quo.

For all this submissiveness, it turned out that millions had been willing to revolt all along — if enough others would also revolt and they felt sufficiently sure of escaping punishment. But no one knew exactly what needed to happen to set off a successful uprising. In retrospect, all it took was a few thousand demonstrators calling for more freedom and a regime that signaled that it was afraid of overreacting. People standing on the sidelines suddenly found the courage to join in, and the East German revolt started feeding on itself.

Before long, fear changed sides. People who had never criticized communism publicly were now afraid to be caught defending it. Genuine supporters of communism (they, too, numbered in the millions) joined the opposition. They took to pretending to have been falsifying their political preferences out of fear, like their compatriots who had genuinely felt oppressed.

Harvey Weinstein’s fall from grace fits the same pattern. Few Hollywood executives have been as powerful as he. His movies have earned hundreds of Oscar nominations. He was both admired and feared as someone who could make or break a career. As a major fundraiser for Democratic Party candidates, he had national political clout. Though he was rumored to be predator of young women, Hollywood insiders and many observers knew that he dealt ruthlessly with anyone who crossed him. Reporters who investigated his behavior found almost no one willing to speak honestly or on the record. Many people who were hurt by Weinstein suffered, we now know, for their own silence. They wanted to go public with their stories all along.

For his behavior to draw public criticism, it was not enough for Weinstein’s behavior to be widely known. Potential complainers needed to know that other victims and witnesses would back them up. They also needed to believe that Weinstein’s supporters or the press would not smear their reputations. It needed to be sufficiently likely that the early movers would be greeted with sympathy rather than condemnation.

A number of accusers are probably exaggerating or confabulating to pile on since a story of your encounter with him is now a net positive for your notice and career. But as with Bill Cosby, the numbers suggest many of the reports are true.

His “production line” for having starlets delivered into private situations so he could pressure them into sex had to have been enabled by helpful staff, agents, and others who could have blown the whistle, including a complicit media who were easily stopped from reporting stories as they came up. Weinstein controlled ad revenues, contacts both professional and political, and knowledge of others useful for blackmail. His participation in the corrupt Clinton-Democratic machine shielded him, as it did Bill Clinton, from the worst attacks by feminists and reporters. It has come out now because their power has waned, and the Clinton Foundation influence-peddling machine is dying.

This kind of methodical abuse is outside the usual attachment type considerations. Weinstein was closer to a psychopath-narcissist, with a special extra dash of sadism — he got off on the power to force beautiful young women to submit to his will, to degrade them with his sperm and get away with shaming them without consequence to himself. His insecurity was expressed differently than on the usual anxious-to-dismissive axis.

But this story shouldn’t produce a witch hunt to criminalize or punish anyone who commits an error in judgment.

If rude and clumsy approaches were crimes, we’d all be in jail (well, almost all.) When I was young and reasonably good-looking, I got hit on a lot in venues that invited that (bars, parties, etc.) It wouldn’t occur to me to think of myself as grievously wronged with the first grope — the offender gets rebuked and avoided, with a wagging finger and “tsk!”

One good example of a misdemeanor offense: one of the incidents being talked about has Philip K Dick’s daughter in a cab with the Amazon Films producer after a party going to another party. He’s aggressive and pushy and profane. So what? She knew there was no danger to her participation, he had clearly overdone the drinking, she immediately reported it, it didn’t happen again. That’s a common event for anyone who goes to mixed drinking/business/social events. Guy was presumably warned.

The workplaces where pressure is constant and one rebuke doesn’t stop the approaches are where the legally actionable stuff happens. Weinstein had a whole system and cooperative employees/agents/staff, quite a different thing from an occasional drunken mistake.

Which is where the neo-Puritan, fragile flowers of femininity problem shows up. You can‘t claim equality and go out in the world and then turn around and claim privilege to never be offended or crudely approached. Men tend to excuse one or even several offenses from their fellow employees before going on the warpath. Woman are being trained to claim a right to success and a right to special treatment beyond what others enjoy. “I am good and strong on a team” does not quite jibe with “Every offense to my dignity should be punished by expulsion of the offender.”

More reading:

A Clinton Christmas Carol
“High Tech Under Diversity Pressure
Ban the Box, Credit Scores, Current Salaries: The Road to Hiring Blind
HireVue, Video Interviews, and AI Job Searches
“Death by HR” – Diversity Programs Don’t Work

“Death by HR” Released as Audiobook
Death by HR Audiobook Cover

“Death by HR” Audiobook Cover

After much work with narrator Joe Farinacci (who did such a good job with Avoidant) the Amazon/Audible audiobook of Death by HR is finally for sale at these links:

Amazon
Audible