The humorist John Hodgman had a bit called “You’re Welcome”, where he proposed elaborate and implausible solutions to fanciful problems, and pompously concluded with “You’re welcome.”
I actually am the kind of pompous tool that Hodges is only pretending to be, so I am going to point out some easy ways to solve various knotty problems currently confounding this republic. We start with the jury system.
The problem with the jury system is that no one on a jury has any incentive to reach the correct verdict. They may be well-intentioned, but good intentions are famously, paving-stones on the road to Hell.
The economist Steve Landsburg proposed we solve this problem by simply punishing jurors whose verdicts turn out to be wrong. If they acquit a man who is later found to be guilty, or convict one who is innocent, the jurors are to be fined; of course, if it turns they have acquitted an innocent man or convict a guilty one, they get some reward.
There are a lot of problems with Landsburg’s solution, but the two I want to focus on are related. First, we rarely find out for certain whether the accused truly committed the crime of which he is accused. The vast majority of the time, we only have the verdict itself to go on.
Second, and more important, the job is of the jury is not to distinguish the innocent from the guilty. Their job is to determine whether the prosecution has proven the guilty of the accused “beyond a reasonable doubt.”
This realization greatly simplifies the problem. If you were to define justice as “all guilty men go to jail, all innocent men walk free”, you might as well give up; it is unattainable. Defined as it is, conviction requiring nothing more or less than proof beyond a reasonable doubt, it becomes a comparatively straightforward decision about the strength of the prosecution’s case.
Indeed, a trial would only need one juror if we knew for certain that juror was both “reasonable” (that is, he could tell if the doubts left in his mind were actually reasonable), and honest (he would tell us his conclusion, despite any prejudices or fears he might have). We cannot know either of those things, so we choose twelve jurors in the hope that any unreasonability or dishonesty of individual jurors will be washed out by the good sense and good character of the majority.
It works, I would say, fairly well. Certainly, it works better than any other system except the one I am about to propose.
To preface, I want to tell you about an experiment I performed. I asked several acquaintances the following question: “If you were in a contest where every participant picks a number between 1 and 10, and each participant who picks what turns out to be the most popular number receives a prize of $10, what number would you pick?”
If you think about it for a moment, you will guess exactly what happened: every single person I asked picked seven. Seven is believed to be the most popular number, and even if you yourself do not prefer it, you know that other people do, and you know that other people know that still other people prefer it.
We may have our own preferences, our own idiosyncratic opinions, our own prejudices, unsupported beliefs, superstitions, irrational fears… but despite them, we know what the majority mindset is, even if we reject it.
So my proposal: instead of one jury of twelve people, seat two juries of six people each. Both juries watch the trial separately and then go to separate rooms to deliberate. The juries are sequestered, even from each other: the only information they have is the trial itself. Each jury can make its own rules about deliberation, and they stay in their rooms until they come up with verdicts.
The rule is, if the two juries come back with the same verdict, the verdict is recorded, and each juror is paid $500. If they come back with different verdicts, they get nothing and a mistrial is declared.
But I bet mistrials will almost never happen. The question the juror is asking himself is not “Do I think this guy is guilty?” but something quite different. At first he asks, “Does the other jury think this guy is guilty?” Then he realizes that the other jury is in the same situation, that those jurors are racking their brains, trying to guess what he himself will decide. Eventually, the infinite regress – what does he think that I think that he thinks that… – resolves itself to “What would the average person think?”
Which is exactly the right question! Given the prosecutor’s presentation, and the defense’s rebuttal, would the average person think the case is proven beyond a reasonable doubt? The actual juror is given incentive – not just exhortations but cold hard cash – to put aside all prejudice of his own, all lethargy, all “gut feeling”, and put all his intelligence and energy into figuring out what the average, reasonable person would think.