Legislative Juries

Legislative Juries is a phrase comprised of the two terms, Legislative, pertaining to the making of laws, and Jury, meaning a deliberative body of people assembled for a definite purpose. The two terms were first used together (to coin a new phrase) in the dissertation entitled Taking Democracy Seriously: A Proposal for Citizen Lawmaking. The term has been discussed most recently in a book by W. Jackson Crittenden, entitled Wide as the World: Cosmopolitan Identity, Integral Politics, and Democratic Dialogue, Rowman & Littlefield Publishers, Incorporated, Lanham, MD, 2011.
Concept
The idea of Legislative Juries is proposed as an improvement to the current initiative process. This proposal for creating and using legislative juries to augment the current initiative process combines some aspects of the current initiative process with the deliberative aspects of a jury trial. The increasing number of initiatives placed on ballots provides evidence that United States citizens do not want to rely solely on the representative system of lawmaking. Likewise, the advent of the National Issues Forums and other citizen panels demonstrate a trend toward public deliberation. What has not been proposed before is a process that would bring these two trends together. Legislative Juries is a possibility for that process.
Impetus
During the past thirty years, there has been a movement toward more direct democracy in the form of citizen-sponsored “initiatives.” At present, twenty-four states allow citizens to propose and sponsor initiatives that are then voted upon in special or general elections. The initiative process, a form of direct democracy, has been heavily criticized. Thus, Dr. Campbell proposed a revision to the initiative process that employs the use of randomly selected citizens to serve on (what she has termed) “Legislative Juries." This process of citizen lawmaking would add the element of public deliberation to the initiative process and offer an improved form of direct democracy that responds to some of the major concerns that have plagued democracy since its conception in ancient Greece. The jury process of deliberating and arguing to consensus might provide a hope for the future of citizen lawmaking.
Overview
To offer a brief overview of legislative juries, the similarities between the well-known jury trial and the proposed legislative jury include, but are not limited to: random selection process of 12 members; voir dire in order to uncover biases that might affect an impartial deliberation; the gathering of information regarding the legislation to be done in open court with the public invited to observe (but not participate) unless called upon as witnesses; expert witnesses brought in to provide instructions (including attorneys who may be randomly selected to instruct the jury on matters of law, when necessary); deliberation and argument toward consensus in private; and reaching a unanimous decision.

The obvious dissimilarities include, but are not limited to: the absence of an adversarial process; no plaintiff or defendant, and thus no attorneys advocating or judges presiding; the presence of a neutral moderator guiding the process of deliberation; and, the end goal as legislation, not finding of guilt or innocence. I shall outline the process more concretely as we proceed and thus attend to the specifics of the similarities and dissimilarities at that time.
Because of the obvious dissimilarities, between legislative juries and criminal/civil juries, the model for legislative juries is structured by adopting (in part) the format for deliberation used in the National Issues Forums. Around the United States public deliberation is being promoted through the use of National Issues Forums. The Kettering Institute has created a network of Public Policy Institutes in several regions across the nation. Through the Public Policy Institutes, communities are encouraged to bring forward critical issues in order to discuss those issues in a “non-confrontational, non-partisan manner.” National Issues Forums provide:
way to develop deliberative skills. To deliberate means to weigh. NIF forums and study circles help citizens weigh carefully the advantages, disadvantages, costs, and trade-offs of basic choices about an issue…We call that doing deliberative democracy. For more on the National Issues Forums, access their website at
Example
How a legislative jury might function is as follows:

To begin, an issue would be referred to a legislative jury as a step in the current state-approved initiative process. At present, the initiative process proceeds in the following way: An issue arises and citizens feel that the current legislators are ignoring it. In response, citizens move toward proposing an initiative by circulating a petition. If enough signatures are gathered, they gain the right to place an initiative on the ballot. In this same way, an issue could be brought forward (after the requisite number of signatures have been secured) and a legislative jury could be convened and assigned the task of creating a law that could be then placed on the ballot in the form of an initiative. Thus, the process of forming legislation through a legislative jury is really just a slight variation on and improvement of the initiative process already being used in twenty-four of the fifty states in the United States of America.

For the purposes of describing the legislative jury process, one could use the example of the issue of medical marijuana. Although any difficult issue would suffice, this issue was chosen because it is extremely controversial, and it is not entirely hypothetical. The issue of legalizing marijuana for medicinal purposes has been put on the ballot in several states and has been approved by the voters. However, this legislation has not been enacted into law for various reasons. So, for purposes of the example, let us assume that enough signatures have been gathered and citizens are calling for legislation on the legalization of marijuana for medical use. In this hypothetical scenario, the issue would then be referred to a legislative jury before the initiative could be placed on the ballot.
Random Selection of Jurors
As in the current jury model, citizens would be randomly selected from the agreed upon citizen lists (e.g., motor vehicle registrations or voter registration rolls) to serve on legislative juries. After being selected to serve, the prospective jurors would arrive at the courthouse on the appointed day in much the same fashion as if they were selected to serve on a jury convened to hear a civil or criminal case. Jurors would be paid a daily wage to serve on the legislative jury. They would check in at 8:00 a.m. and wait with their fellow citizens to be called as prospective jurors. Of course, there are some acceptable reasons for not responding to the jury summons. For example, ill health and extreme hardship are recognized as grounds for an exemption from the duty to serve. But assuming that one has no legitimate excuse, the next step is to wait with other citizens to be selected for a specific jury. Citizens are assigned in groups of thirty to move forward to an assignment. The idea is to be able to choose at least twelve impartial jurors from the randomly selected group of thirty.
Voir Dire
Following the voir dire process in jury trials, the group of thirty randomly selected jurors would first undergo some questioning in order to determine whether they have any vested interest in this legislation. For example, if someone is suffering from a disease and her suffering could be alleviated by the use of marijuana, she should be excused because of a conflict of interest. Someone might wonder how important it is that the legislative jurors are impartial. After all, if these randomly selected jurors are supposed to be representative of the public, why not just take any twelve citizens along with their biases and prejudices? However, if one keeps in mind that the goal of the legislative jury is to deliberate toward the common good, then self-interest is supposed to be, at least temporarily, set aside. The purpose of the voir dire is to insure that the jurors are engaged in a good faith effort to do so. If someone has a substantial interest in the outcome, this should be recognized during the voir dire and that person should be excused. Normally the attorneys and the judge would perform the questioning during voir dire. However, since there are no judges presiding over the legislative jury and there are no lawyers acting as advocates in the process, the questioning during jury selection would be performed by professionals trained to perform this function.

The individuals performing the voir dire (let us call them the “quaesitors”) would have to be selected for their previous training and ability to ask pertinent questions and remain neutral throughout the process of impaneling the jury. For example, someone with a legal background or a background in psychology might be well suited for this task. The position of quaesitor should be a professional bureaucratic position, similar to the position of bailiff or court reporter, so that this individual is continually on staff and randomly assigned to a jury. Random assignment of quaesitors to juries would help lessen the chances for the person in charge of conducting the voir dire to have requested the job of questioning that particular jury in order to “stack” the jury. In addition to this concern of possible corruption, another concern would be that a prospective juror could lie during the questioning in order to remain on the jury. However, there is built into the process at least one other safeguard against the possibility for this type of corruption.
Two-tiered Approach
In order to lessen the chances of corruption, the legislative jury process should involve a two-tiered approach. During the first phase, a jury is impaneled in order to frame the issue and propose some possible approaches to legislation. This “framing tier” (similar to the framing tier that takes place in National Issues Forums) is crucial to the success of legislative juries because this is the stage of the process in which a diversity of approaches should be included for deliberation and discussion. Again, following the NIF model, this “framing” jury should propose at least three or four different approaches to the issue. The approaches should vary greatly, even to the point of being diametrically opposed to each other, in order to assure that a broad range of possibilities is discussed. After the framing jury has done its work, this first jury is excused and another jury is impaneled to select which of the four approaches should be fashioned into an initiative that will then be placed on the ballot. Dividing the responsibilities into two different stages should help to reduce the opportunities for corrupting the process. This is discussed when addressing other concerns below. However, let us continue with a description of the framing jury.
Framing Jury
The framing jury has as its goal the articulation of three to four different approaches to possible ballot initiatives that will then be passed on to the next jury. During the framing phase, a trained moderator begins by instructing the jurors on how moderated deliberation is achieved. The moderator informs the jurors about the issue, the ground rules, the procedures, and the proposed goal.
The first task of the framing jury will be to read and discuss amicus briefs, or amicus curiae, that have been offered by interested parties. These amicus briefs will have been solicited in accordance with a pre-determined standard. For example, amicus briefs of no longer than five pages will be accepted by a certain deadline for consideration by the jury. These briefs will allow interested parties to supply information to the jury for consideration. The rationale behind this is to provide a way for interested parties to inform the jury without allowing everyone who is interested to give oral testimony in front of the jury. Allowing anyone and everyone to come and speak in front of the jury would be unrealistic given constraints of time and money. Asking interested parties to submit their information in writing should help to limit the briefs to those who are serious enough to take the time to put their concerns in writing and file with the court.
The jury may decide that each juror should read one or more of the briefs and then report to the rest of the jury, or if there are very few briefs submitted, the jurors may decide that each juror should read each brief. The reading and discussion of the preliminary briefs will be conducted in private. These written briefs will provide background information and arguments from interested citizens. After the briefs have been read and discussed, deliberations on the approaches should begin.
The initial deliberations on the approaches will begin in private session. However, as the deliberations proceed, the jurors may find that they would like to hear advice in the form of testimony from either trained experts or submitters of some of the briefs. For example, the jurors could ask for a psychologist or a psychiatrist to be brought in to testify as to the addictive qualities of marijuana. They may also want to hear more detail from a writer of one of the amicus briefs. Perhaps a group of social scientists submitted a brief about the effects of legalization of marijuana in Amsterdam, and the jury would like to hear more of the details of that study. The jurors may invite experts and witnesses to testify as needed and this testimony should take place in a public setting. As in the present courts of law, only those persons invited to testify may be heard at these public hearings.
After hearing the testimony, and being satisfied that they have adequate information, the framing jury retires from the public deliberation and forms the three or four approaches in private. The framing jury must come to a consensus on the possible approaches. If they cannot, the jury must report that they are “hung,” and if the moderator agrees, the jury will be dismissed. If the available statistics on hung juries in criminal and civil trials may be used as a reliable guide, this will occur only rarely. Because the initiative process and the legislative jury process involve taxpayer time and money, citizens should take this responsibility seriously and make every good faith effort to perform the assigned task. Given the statistics on the instances of hung juries in civil and criminal trials, there is reason to be optimistic. If the jury is unable to agree on possible approaches, the issue must go back to the public for the required number of signatures before it could be brought forward again.
So to continue with the hypothetical example, imagine that, after reading the briefs, listening to testimony from witnesses, and engaging in deliberation led by a trained moderator, the jury settles on four approaches--representing four possible ballot initiatives--to send onto the next stage. The chosen approaches are:
1. No legislation—leave marijuana illegal.
2. Legalize it as a prescribed drug to be used only for terminally ill patients and with heavy taxation to offset some of the costs of enforcement.
3. Legalize it as a prescribed drug to be dispensed at the discretion of an attending physician.
4. Legalize it in small quantities (for personal use only, not for distribution and sale) for all adults over the age of 18, but with heavy taxation in order to offset the costs of education and possible addiction.
Naming Jury
After these approaches have been formulated the first jury is excused and the process moves on to the second phase, that is, the naming jury. During the second stage, another jury is impaneled in order to deliberate (again with a trained moderator guiding the discussion) on the possible approaches and then come to some consensus on a proposed piece of legislation that can be offered as a ballot initiative. Impaneling this second jury helps to prevent either the quaesitor or one of the jurors from exerting undue influence during the process. So even if a quaesitor has stacked the first jury or if a person with a vested interest has lied in order to be selected and to persuade others on the framing jury, those persons are excused after developing the approaches and cannot take part in the second stage of the process. During the second stage another jury will be impaneled and the new jury will deliberate on the approaches. The goal of the second jury should be to propose a law that could then be placed on the ballot. Let us call this second jury the “naming” jury because this second jury will name one of the approaches as their choice for the actual initiative that will be placed on the ballot. It is important that the naming jury select their legislation from the approaches that were sent forward by the first jury. If the naming jury decides that they would like a different approach altogether, then the outcome of their deliberation would be merely to re-frame the approaches and send them on to a new naming jury for proposal of the actual legislation to be placed on the ballot. I say this is important because it was pointed out to me that if the second jury can deviate from the approaches and in essence can “do whatever they want,” then the two-stage process has been subverted and you have, in effect, a renegade jury.

Formulating the Ballot Initiative
To continue with the hypothetical example, suppose that the naming jury has decided on approach three (above) and is now making an attempt to formulate the legislation. During this stage the jury may call in experts, as needed, to help them create the legislation. Before being placed on the ballot, the proposed legislation would be submitted for review by court appointed judges who would check the proposed legislation against current statutes and relevant case law. If the jury has unwittingly created a law that is either unconstitutional or in direct conflict with other legislation, then it should not be placed on the ballot. Of course, this should not usually occur because the legislative juries will hear expert testimony and have access to appropriate legal advice during both phases of the process.
Now suppose that the jurors in round two of the process have decided to propose a bill that is similar to approach three above. With the guidance of legal experts (as described above), the naming jury formulates an initiative to be placed on the ballot. The completed initiative might read as follows:
Marijuana may be dispensed to a patient under the care of an attending physician in amounts not to exceed one gram, by prescription only at the discretion of a licensed medical doctor.
This proposed initiative would be the outcome of the naming jury. The initiative would be placed on the ballot according to the applicable state rules and regulations governing the placement of initiatives on the upcoming ballot. Alternatively, the legislative jury might propose that no legislation be enacted. For example, some of the “expert” testimony may have convinced the jurors that any legislation making the use of marijuana legal really is in conflict with federal law. In that case the jury might decide that no legislation should be placed on the ballot at this time because as long as the legislation conflicts with federal law it will not be enforced and thus putting it on the ballot will waste taxpayer time and money. Should this occur, the jury would be dismissed and the issue set aside until such time as another group of citizens gathered the requisite signatures to address the issue again.
Deliberation
Having briefly outlined the overall legislative jury process, there are a few more details about the nature of the deliberations and outcomes. Following a rationale provided by Lynn Sanders, the legislative jury should be “evidence-driven” rather than “verdict-driven.” Sanders mentions this distinction and argues that, in an effort to encourage minority views during deliberations, the deliberators ought to follow the model of evidence-driven juries as opposed to verdict-driven juries. She adopts this distinction from the work of Reid Hastie, Steven D. Penrod, and Nancy Pennington. In their study of jury deliberations, Hastie, et al., discovered that in verdict-driven deliberations, jurors are primarily focused upon reaching a unanimous verdict and on persuading dissenters to change their votes and join the majority. This style of discussion is typical of deliberations that begin with a vote, usually a straw poll, in which each juror indicates his or her voting preference.

Evidence-Driven Deliberation
As opposed to the "verdict-driven" style of deliberation, during the evidence-driven model of deliberation, jurors focus on a discussion of the physical and witness testimony first, and then take a vote only after they have spent time discussing the evidence. Based on the their study of deliberation in these two different styles of jury, Hastie, et al., came to the following conclusion: "Finally, evidence-driven deliberation may be more robust than verdict-driven deliberation, as shown by jurors’ higher ratings of the seriousness of the deliberation and of the perceived pressure from other jurors. In summary, verdict-driven juries, in contrast to evidence-driven juries, are relatively hurried, cursory on testimony-law connections, less respectful of their own and others’ persuasiveness and open-mindedness, and less vigorous in discussion."
Since the goal of legislative juries is to find common ground upon which to create laws based on the public good, the evidence-driven model of deliberation should be adopted. The moderator for each legislative jury should give instructions toward the evidence-driven model of deliberation. This is in keeping with the focus of the legislative jury, that is, focusing on the process rather than the outcome.
Since arguing to consensus is a key feature of this process, jurors may be excused from the legislative jury for a “failure to deliberate.” In the applicable case law, there is precedence for removing jurors who fail to perform their duty to deliberate during a jury trial. On a legislative jury, the moderator could, in accordance with the applicable state or federal statutes and accepted case law regarding a juror’s removal from a jury, excuse a juror.

Outcomes
As to the possible outcomes of the legislative juries, remember that the legislative jury is a two-tiered process. The outcome of the first jury should be three to four possible approaches to the issue. These approaches are sent to the second jury whose goal is to propose legislation based on one of the approaches (or some combination of the approaches). Since both juries must reach consensus, either jury could end up “hung.” That is, the jurors might not be able to agree on approaches (tier 1) or legislation (tier 2). They would then be discharged and another jury impaneled at a later date if there is the impetus to continue toward legislation on that issue.

Consensus vs. Majority
At this point one might wonder why propose that the juries argue to consensus as opposed to accepting a majority or super-majority vote. A concern about requiring consensus rather than a majority vote is that one person could act as a “hold-out” and thus control the outcome. Given that one person on the jury could have that much potential power, this would seem to make the process both anti-democratic and anti-egalitarian. A response to this concern is based on a couple of different considerations. First, the purpose of the legislative jury is ultimately to have a group of average citizens try to reach consensus about some good legislation on a difficult issue. We intentionally using the phrase “reach consensus” as opposed to “unanimity” because arguing to consensus and reaching a unanimous vote are not the same thing. In an academic department, for example, they often argue to a consensus on a course of action without ever taking a vote. Since reaching a unanimous vote and arguing to consensus are not exactly the same thing, this is a slight dissimilarity between current jury practices and what I am proposing for legislative juries.
Currently, on most civil and criminal juries, the foreman must continue to poll the jurors until a unanimous decision is reached. Most jury trials require unanimity based on tradition, but according to the literature mentioned earlier, there seems to be some evidence that requiring unanimity results in better decisions than requiring only a majority or super-majority. However, even if there were no empirical data to support unanimity over majority decisions, one could still argue that reaching a consensus (which is closer to unanimity than majority rule) is an important part of the legislative jury process. Since the purpose of the legislative jury is to have a representative portion of the population reach a decision aimed to serve the public good, if one or more persons cannot agree on the legislation, then perhaps they represent some portion of the population that would not agree to that legislation. Because the purpose of the legislative jury differs from the purpose of a criminal or civil jury, the notion of a “hold-out” is not as anti-egalitarian as it might seem. Furthermore, because arguing to consensus is not exactly the same as reaching a unanimous vote, a person can agree to move forward without having to vote “yea” or “nay.” Lani Guinier’s description of what (ideally) occurs on juries is closest to what I envision for legislative juries: "Jurors come collectively to their task under compulsion of law and are instructed to put aside their biases, deliberating only on the basis of the evidence. Their mission is to review the evidence and decide an outcome that is in the public interest, rather than their self-interest. The resulting outcome is supposed to represent the consensus view of all the jurors, as opposed to the ratification of the view of a majority of the jury."
For these reasons, arguing to consensus is the model chosen for the legislative jury. There might also be some support for this process based on the following theoretical consideration. Bernard Grofman and Scott Feld have argued that if one considers Condorcet’s jury theorem as a concrete expression of Rousseau’s identification of the general will, this can give one hope for a deliberative democratic body approaching the common good. The hope is that this reconstruction of Rousseau’s theory can lead to a broader understanding of democracy as a means to collective ends, rather than as just as a means for aggregating narrow interests residing in, and confined to, individuals. While it is often assumed that democracy should be based upon individuals following their own self-interests, Rousseau’s and Condorcet’s contributions suggest that democracy “works” better when individuals try to see beyond their narrow self-interests to the collective good.
Having the legislative jury aim for consensus is akin to the reasoning in the paragraph above. In joining the notion of Rousseau’s general will with the Condorcet Jury Theorem, this would give one reason to think that the legislative jury process could provide a concrete process for creating legislation based on the common good.

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