September 23, 2010
by Ann Marlowe
For the last two weeks, I’ve had grand jury duty. In New York State, you can choose between twenty days at three hours a day or ten at six. I chose the former.
Grand jury duty is a big inconvenience, especially if you’re self-employed, as I am, and no one is paying you for your lost work hours (in which case you get a princely $40 a day from the government). Apparently it’s very hard to get out of grand jury duty entirely, even if you will suffer financially. But I didn’t try.
Part of the reason was my time in Afghanistan, which has left me with a respect for American civic obligations. They are what stand between us and the more-or-less barbaric Afghan judicial “system,” in which prosecutors capriciously or venally indict or do not indict, jailors may or may not accept a bribe to release a criminal, judges may be illiterate, and verdicts inconsistent — and in which the right or obligation of jury service does not exist.
In fact, it’s hard to imagine a grand jury working in Afghanistan. Beyond getting 23 people to show up every day at the same time, there’s the issue of rules in general. Everyone in Afghanistan thinks of himself as an exception, with some special reason for doing things his way. But our sophisticated and impressive judicial system only functions because jurors and witnesses think of themselves as filling social roles regardless of their individual feelings.
Individual opinions of the laws don’t enter into it. Whether or not you think possession of certain drugs in certain quantities ought to be legal, if there is reasonable evidence that the defendant has violated the law, you vote to indict him. Whether or not the defendant, the witness, or the prosecuter is of your ethnic group, or a group you like, you make an impartial decision. Everyone in the jury has an equal say, no one defers to others on the basis of presumed socioeconomic position, and no one would dream of bribing another juror.
Then there is the issue of efficiency. The justice I’ve seen is impartial, scrupulous, and swift. It’s almost impossible to imagine all of the moving pieces working so well in Afghanistan. Arrest someone, fingerprint him, fill out a voucher for a weapon or drugs taken from him, book him, contact witnesses, get the case to the ADA — this would take weeks in, say, Zabul, even if justice weren’t derailed by bribery. I can’t even imagine the court reporting system working so flawlessly over there.
My seven afternoons so far reveal a gulf between the generally law-abiding part of society and criminal part. You could also say that what I’ve seen validates the “broken windows theory.” Pick up a guy for one infraction and he turns out to have another in the wings. Maybe you or I wouldn’t try a scam at the subway booth if we were carrying a concealed weapon (or we wouldn’t take the concealed weapon if we planned to beat the fare), much less if we had a prior weapons conviction. But some people just get up in the morning and start committing crimes — it’s their way of life. They violate the order of protection obtained by their ex-girlfriend and beat her up in front of many witnesses. They threaten to kill arresting officers (a crime in itself). They perjure themselves freely.
The system I’m participating in is set up so that the relatively law-abiding and nonviolent majority are charged with making sure that the behavior of a small group of committed criminals doesn’t poison society as a whole. This is the goal in Afghanistan, too, of course; it’s just that they use the forms of a (badly eroded) traditional society to accomplish it.
Human nature isn’t so different between the two countries.
If you look at the offenses the 500 ADAs in the state of New York busy themselves with, there’s plenty of common ground with Afghan problems. Drug dealing, weapons possession, assault: about the only popular New York crime I’ve never heard of in Afghanistan is credit card fraud, and that’s because they don’t have credit cards. But it must be said that there are far fewer muggings and instances of casual street crime in Afghanistan — in a traditional society, everyone is watching everyone else. And there isn’t much of a public space to get mugged in in Afghan towns and cities. No one’s in a park at 2 a.m. to begin with.
Can we build a reasonable justice system in Afghanistan? Or, more basically, can we build the rudimentary civil society needed to sustain one? Many would now say no. I’ve heard smart and ethical people argue that democracy is the icing on the cake, not the cake; that civil society has to precede forms like voting, and jury trials, and parliaments. They have a point. But I would answer that you build civil society by enacting it; you obtain a justice system by going through at least some of the motions until it becomes habit; you get to democracy by voting, time and again, until the process of voting changes your synapses and brain wiring and you believe in it and can’t imagine any other way.
This doesn’t go only for Afghanistan, but also for other underdeveloped countries. We in the developed world don’t have five centuries in which to watch places like Somalia and Sudan and Yemen and Pakistan gradually move toward the rule of law and civil society. The process has to be accelerated, or humanity itself may not survive. Sitting in the jury chamber these days, I feel more and more the urgency of moving the rest toward the West.
Ann Marlowe is a Visiting Fellow at Hudson Institute.
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