by Tim Sommers
I recently rewatched “12 Angry Men” with The Philosophy Club at the University of Iowa as part of their “Owl of Minerva” film series. The 1957 film has the late, great Henry Fonda as the lone holdout on a jury ready to convict a poor, abused 18-year-old boy for allegedly stabbing his father to death. Over one long, tense evening (shown in something close to real-time), juror #8 – none of the jurors are identified by name, only number – forces the rest of the jury to methodically reexamined the evidence. It’s not a courtroom drama, it’s a jury-room drama in which only 3 of 1:36 minutes of running time take place outside the sweaty, claustrophobic jury room. The film is intense, moving, and effective. Afterwards, I made the following remarks.
The number of jurors – the “12”, as they are starkly described in the 2007 Russian remake of “12 Angry Men” – is not entirely random. We have the Marquis de Condorcet, at least in part, to thank for that number. Condorcet was a moderate democrat during the French Revolution. He advocated universal suffrage and was an early advocate of universal primary education. He went into hiding after voting against the death penalty for Louis XVI, but was captured and died in his cell nine months later. Ironically, his warders had lost track of who he was by the time he died and he was identified only by the copy of Horace’s “Epistles” he had been carrying when he was arrested.
Condorcet had studied juries and concluded that, under the right circumstance juries and, by extension voting, is an extremely effective procedure for getting right answers. This was a consequence of his famous “Jury Theorem”. I won’t rehearse the mathematics here. But on an issue with two alternatives, where the decision is made independently by each participant, where there is also an objectively right decision, and each decision-maker has a greater than 50% chance of making that right decision a group of 5 or more people have a high likelihood of making the correct decision, a group of 12 has a higher likelihood of giving the correct verdict, and a group of a 1000 or more is nearly certain – out to several decimal places certain – to make the right call. In other words, if we think of a jury as a kind of procedure to determine the truth of a question, the more the better, but 12 makes a solid, practicable number.
We might even think of Condorcet’s theorem as an epistemic argument for democracy. Where the 12 might get you to the right verdict in a courtroom, tens of thousands of voters, even millions in some elections, will give you near certainty that you have the right answer. Are democratic procedures a machine for generating answers to difficult questions?
Unfortunately, not. Here are just some of the reasons. For democratic voting it’s not clear that there is an objectively right answer or that the choices are always binary. Even with juries, where we might think that there is always a binary choice, in that the accused is objectively either guilty or innocent, as we will see later, these assumptions may not hold. More importantly, and sadly, we have no reason to suppose, in most real-life cases, that the decision makers have a better than 50% chance of being right. Indeed, where political ideology systematically distorts decision-making, we have reason to assume that people are, in fact, accurate less than 50% of the time. And, unfortunately, the “Jury Theorem” works in either direction. Where a large group of people are wrong more often than right, they are nearly certain to be wrong on any given vote. As the Disincentive poster about meetings goes, “None of us are as dumb as all of us.”
In any case, the “Jury Theorem” at least highlights one thing we expect from certain kinds of procedures like juries and democracies. We want the right answer. The epistemic value is only one factor, however. We also want procedures to be fair. “A jury of your peers”, for example, is supposed, without any guarantee of giving the right verdict, to be fair. As for democracy, sometimes, apparently, it leads to Donald Trump. But, anyway, it’s supposed by many to be a fair way to make a decision – maybe, even the decision about who we eat first once Trump has reduced the country to smoking ruins.
It’s going to matter, of course, what “fairness” means. Suppose you want a fair procedure to decide on guilt or innocence or between policy options, if you believe that juries and voting are epistemically unreliable, say worse than 50%, why vote? As David Estlund has asked, “Why not just flip a coin?” Coin-flipping will, at least, give you the right answer half the time.
John Rawls introduced a helpful way of thinking about how we balance these demands in “A Theory of Justice” where he distinguished between three kinds of procedures – perfect, imperfect, and pure. A perfect procedure is one where there is an independently right answer as to what the right outcome should be and a very accurate method for getting to that outcome. Give two kids a candy bar to share and tell one to break it in half and the other to choose which half he wants. Imperfect procedures have an independently right outcome, but only imperfect procedures for reaching that outcome. Think jury trial, at least on the “12 Angry Men” model. A pure procedure has no independently right outcome. If the procedure is run and everyone follows the rules, the only right answer is just whatever the outcome is. Think poker or, really, just about any game.
Rawls thinks justice is a kind of pure procedure. If you lay down the right principles and everyone follows them, the outcome just is justice, whatever else it is.
What about democracy? Maybe, it’s a pure procedure. Maybe, there is no objectively correct outcome. Rawls, at least on one reading, says we have some cluster of political rights, including expression, association, and the right to vote, and, if we all exercise these, the outcome of the political process is fair whatever else it is. Or consider the view that in voting we are not making a judgment about what the right answer to some question or other is, but only expressing our subjective preferences. If democracy is just a matter of aggregating preferences, it’s some sort of pure procedure. Of course, add that we live in a representative democracy and things get even more complicated.
You may be able to get out of the reverse jury theorem argument, then, by claiming that democracy is a fair pure procedure. But if the procedure has no claim to being right, again, why not just flip a coin? It’s faster, cheaper, and just as likely to give you the right answer.
Maybe, though, democracy is an imperfect procedure and if you have the right background social conditions – education, opportunity, nondiscrimination, free press, etc. – it would have a chance of being reasonably epistemically reliable and reasonably fair. You might look around and ask yourself: How are we doing so far? I’ll come back to that.
But what about jury trials? Forget bench trials where matters of law are primarily what is at stake. In what positivists like H.L.A. Hart would call “hard cases”, the law (and so right answers) simply run out and we can only shrug and hope the procedure is a fair one. Surely, this doesn’t apply to jury trials, though, where there must always be some right answer or other?
But consider the following case. (They did a whole episode of Radio Lab on it.) A man is arrested for having a huge amount of child pornography on his computer. At trail, the defense doesn’t argue that he doesn’t have and watch the porn. Instead, they put a neurosurgeon on the stand. The neurosurgeon says the man recently underwent a surgery that inadvertently rendered him unable to control himself when it comes to child porn. He is not guilty not because he didn’t do it, but because he was physically incapable of not doing it. The prosecution pushes back. He had some ability to control himself because he hid his habit from everyone around him, including his wife, for over a year. The neurosurgeon has an answer. That’s not how this works. Yes, he had the mental faculties to hide what he was doing, what he lacked was the mental ability to not do it.
Forget the answer to the substantive question for a minute. What is the jury (or judge) deciding here? He did it. They are deciding whether or not he is responsible for what he did. Maybe, that has an objectively right answer too. But, maybe, just maybe, that’s really a different sort of question. Maybe, they are deciding what we are going to hold people responsible for going forward. Maybe, even here then the question is whether or not the jury is a fair procedure for deciding a question other than simple guilt or innocence.
As I hinted above, in America today, these philosophical issues seem almost like red herrings. The main problem, for us, with democracy is that we don’t have one. The main problem, for us, with jury trials is almost no one gets one.
On democracy, there are constitutionally mandated, counter-majoritarian features baked into our system. Every state gets two Senators regardless of population (Wyoming has just over half a million people, California has thirty-nine million). The electoral college decides Presidential elections in a way that has given us five presidents that lost the popular vote, two in the last eighteen years alone (George W. Bush and Donald J. Trump). Add to that the gerrymandering and voter suppression and we now clearly live in a minority-ruled nation.
If anything, the situation with jury trials is even worse. Something like 97% of federal cases are decided without a trial and 94% of state cases. In one random year I happened to look at, there were three thousand felony drug convictions in East Baton Rouge Parish and one jury trial. I thought that must be an anomaly, so I looked at the prior year. There were no trials. Add to this that the U.S. incarcerates more people than any country in the history of the world and that a disproportion number of prisoners are black and you might conclude we have a problem.
Jury trials and, increasingly, democracy, are not for everyone.
So, let’s end on an up note and talk about movies. “12 Angry Men” is a very particular type of film that I just happen to be partial to. I love a film with a fairly limited number of characters that plays out in a relatively confined space over more or less real-time. You might say that what I like is actually called a play. But the advantage of a film with these constraints is precisely how up and close and personal you get with the actors. No car chase, or shoot out, not even a Zombie attack holds up, for me, against a heated argument or emotional confrontation shot at close quarters.
So, here are a few of my favorite movies that fit this bill. “Bodies, Rest and Motion” (1993) features four characters (the great Tim Roth, Bridget Fonda, Phoebe Cates, and Eric Stolz) discussing love and the meaning of life over a long weekend – when two of them are supposed to be moving and one painting the apartment. The film is directed by Roger Hedden and based on a play by Michael Steinberg. (A friend of mine used to show it to his “Existentialism” classes. Go figure.)
“Tape” (2001) features Uma Thurman, Ethan Hawke, and Robert Sean Leonard over one long night in dingy hotel room in Lansing, Michigan. I don’t want to spoil what it’s about, since it isn’t revealed to late in the film, but let’s just say it’s very timely. It’s directed by the multi-faceted Richard Linklater.
One of my favorite movies of all time is “Vanya on 42nd Street” (1994), featuring the amazing Sean Wallace and his friend Andre Gregory (they made another great film together that fits my criteria, called “My Dinner with Andre”). Along with Julianna Moore et al, they sit in street clothes in a shuttered and rundown Broadway theatre and do a read-through of a David Mamet adaptation of Chekhov’s’ “Uncle Vanya”. The film, the last one directed by the great Louis Malle, is luminous and more action packed than “The Fast & the Furious”.
If you like genre films, also check out “Bug” (2007) which never leaves the hotel room where Naomi Judd and Michael Shannon are smoking crack, a room which may, or may not, be infested with bugs. It’s directed by William Friedkin from a play by Tracy Letts.
Finally, there’s a film available right now on Netflix that brings all of my themes together. In “Circle” (2015), written and directed by Aaron Hann and Mario Miscone, fifty strangers of all different ages, genders, races, etc. wake up standing in two concentric circles in a mysterious room. They quickly discover that if you step out of the circle you are electrocuted to death – and that every two minutes someone is electrocuted whether they move or not. The movie really takes off when they realize that they are voting on who gets electrocuted next. The negotiations begin, the factions form, and this terrifying little democracy – or is it a speed jury? – hurdles towards an unknown endgame. The fun is the journey not the destination, but I found this take on what makes a procedure fair, and whether there is an independently correct outcome, absorbing throughout.
Actually, I can’t help mentioning one more film that fits my criteria. Someone handing out Bibles on campus once asked me if I was familiar with the greatest story ever told. I said, “Do you mean ‘Die Hard’?” I hope that doesn’t completely discredit me as a film critic.
In any case, if you are more interested in the philosophy, I talked about you’ll find the best coverage of these issues in David Estlund’s excellent book “Democratic Authority” and John Rawls’ “A Theory of Justice” is a must for anyone interested in political philosophy. Finally, for an absorbing, if controversial, introduction to the practical consequences of America’s approach to justice see Michelle Alexander’s “The New Jim Crow”. Unfortunately, in this case, the films – even “Bug” – are more reassuring than the facts.