Overview
The jury system is discussed in The Bob Zadek Show as a mechanism of ordinary participation in governance and as a right under pressure from plea bargaining. Ilya Somin, a professor of law at George Mason University, presents the jury as one of three areas the libertarian team addressed in a National Constitution Center project on strengthening democracy. Carissa Hessick, in a later episode, treats the jury right as a democratic institution that has been cut out of the criminal justice system. The Libertarian Dream Team - Ilya Somin (2022) What happened to the right to a trial by jury? (2022)
The jury as a democratic institution
Somin describes the libertarian team’s report as addressing three aspects of a crisis in the democratic system. The third section outlines ways to increase opportunities to participate in governance, particularly by strengthening the jury system. According to Somin, the founding fathers and figures such as Alexis de Tocqueville regarded the jury as a central mechanism by which ordinary people can participate in governance, but it has been lost or at least degraded over the last several decades. The Libertarian Dream Team - Ilya Somin (2022)
Somin distinguishes the jury from democracy while noting commonalities. He says the jury system has some commonalities with democracy but is also different, and he places it among other kinds of decision-making mechanisms, such as voting with one’s feet, that the report seeks to expand. In his view, trying to do too much through a democratic process, particularly in a centralized way with the federal government having more and more power, can be dysfunctional and can even help to undermine democracy itself. The Libertarian Dream Team - Ilya Somin (2022)
Bob Zadek frames the broader project as building or restoring guardrails to democracy and asks whether the problems are inherent in democracy itself. Somin answers that some problems are inherent, such as voters having very little incentive to be well-informed, while others arise from specific aspects of current institutions. He gives as an example that it is not an inherent problem of democracy that a loser of an election like President Trump in 2020 refuses to recognize the result and tries to overturn it by various means. 3 Libertarian Ideas to Strengthen Democracy (2022)
Plea bargaining and the loss of the jury
In a later episode, Bob Zadek focuses on the plea bargain and the word “bargain.” He describes the defendant as staring down the barrel of a criminal trial and the possibility of conviction, with incarceration at stake, and says the alleged perpetrator surrenders a constitutionally protected right. He says legal history teaches that the founders and those who preceded them felt this was a brutally important right, and that many of the founders, Thomas Jefferson to be sure, believed the jury system was a safeguard against the government’s overreaching. Zadek calls it a highly valued right and not a throwaway right, and says the attention Carissa Hessick gives to plea bargaining is because it is such an unholy contract where somebody gives up a right that history shows is valuable and it is too easily given away. What happened to the right to a trial by jury? (2022)
Hessick agrees that the right is given up much too easily. She tells a story about cases out of Ohio because she thinks they resonate with people for different reasons. People who care about individual rights should be horrified, she says, because innocent people who are being accused are getting pressured into giving up their right and are taking a criminal conviction. People who think these people might be guilty should also be horrified because dangerous people are going back into the community. What happened to the right to a trial by jury? (2022)
Hessick then frames the jury right as more than an individual right against government tyranny. She says it is a way for democracy to function, and that people who live in communities should have the opportunity to decide whether the person who has been arrested is a dangerous person who did a dangerous thing or somebody who was innocent and was wrongly accused. She says those people have been cut out of the system entirely, and that this is what Thomas Jefferson and John Adams and all of them cared about as well. In her account, they did not just care about protecting people from tyranny; they cared about having Americans involved in running the country. Juries, when they are used, play a huge role in deciding whether someone committed a crime, and she says they have been taken out of it and left to bureaucrats. What happened to the right to a trial by jury? (2022)
Across episodes: the jury in two framings
The jury system appears in two episodes, both featuring guests who treat it as a democratic institution rather than a mere procedural safeguard. In the 2022 episode with Ilya Somin, the jury is one of three ways the libertarian team proposes to strengthen democracy, alongside foot voting and other private-sector decision-making; Somin notes that the jury has commonalities with democracy but is also different, and that it has been lost or degraded over several decades. In the later episode with Carissa Hessick, the focus shifts to plea bargaining as the mechanism by which the jury right is surrendered, and Hessick emphasizes the community’s role in deciding guilt and innocence and the removal of that role to bureaucrats. The excerpts show no direct development or disagreement between the two treatments; Somin supplies the structural and historical framing, while Hessick supplies the criminal-procedure critique. The Libertarian Dream Team - Ilya Somin (2022) What happened to the right to a trial by jury? (2022)
What the sources do not cover
The excerpts do not state the state in which the Ohio cases arose, the name of any bill or statute, what any case held, or which amendment the jury right turns on. They do not give the founding date of the jury system or the full ending of Somin’s sentence about the foot voting section. They also do not provide the outcome of the National Constitution Center project or the fate of the Electoral Count Reform Act mentioned by Somin.