Should Women Serve on Juries?
In pursuit of equal rights
My opinion about whether women should have the vote has always been that I don’t support democracy so I don’t think anyone should be allowed to vote.
Economic Consequences of Women’s Voting Power
As an empirical matter, it’s clearly the case that the net economic effect of women’s suffrage has been negative. Most women vote for bad economic policies - even worse than the economic policies favored by the majority of men. An analysis by Caplan (2009) examined how various factors influence people’s economic beliefs and found that being male rather than female has an effect about 16% the size of the effect of having a PhD in economics rather than not having one. If every voter had the economic views of the typical Econ PhD, we would have a truly incredible level of abundance and prosperity. The effect of women’s suffrage has plausibly reduced economic prosperity by trillions of dollars per year, resulting in a substantially lower quality of life for hundreds of millions of people1.
One could therefore make a strong Utilitarian argument against women’s suffrage on the grounds of its enormous negative consequences for human prosperity. After all, Utilitarians don’t hold equal rights as a moral principle.
Juries
However, I’m not a Utilitarian and I do believe in equal rights. Happily, I don’t have to choose between equal rights and prosperity because I don’t support democracy in the first place. I think we should have the best economic policies, and I also think that men and women should equally not have the right to vote.
But while I don’t believe that we should have elections, I do think we should have juries. Juries are the best way for the people to be sovereign. It is how we ought to determine whether an accused criminal is guilty, and I believe that juries should be used for all sorts of other things as well, such as determining the acceptable levels of pollutants.
Most of the people who thought that women should not vote in elections also believed that women should not serve on juries. Some states did not allow women to serve on juries until the late 1960s. Many anti-suffrage women thought it wasn’t appropriate for women to be in the public sphere.
"One sex lives in public, in constant conflict with the world; the other sex must live chiefly in the private and domestic life, or the race will be without homes and generally die out."
Clara T. Leonard, anti-suffragist
So my view that women ought to sometimes be on juries is a bit out of step with the early 20th century conservatives who I usually defend.
Pro-women-on-juries groups argued that male jurors would be too lenient on attractive women. This women’s rights cartoon from 1914 shows male jurors letting a beautiful female murderer off the hook.
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This is a compelling argument. Sometimes male judges are ridiculously lenient on female violent criminals. Maybe female judges are just as lenient, but at the very least it shows that men’s allegedly hard-nosed approach to justice does not seem to apply to female offenders.
My Grandma once told me that she was on a jury which decided a civil lawsuit against a bus company. Somebody was suing the company for a lot of money for what sounded like a frivolous reason. My Grandma thought the company didn’t do anything wrong. But the jury (and my Grandma) decided to make the company pay the plaintiff some money (though less than she initially asked.) This sounds very unjust to me. If the bus company did nothing wrong, then they shouldn’t have had to pay anything. The plaintiff who brought the frivolous lawsuit should not have been rewarded. Grandma was a very smart lady, and it disturbed me that she saw nothing wrong with going with the consensus and assenting to an outcome that she didn’t really think was right. I’m sure some women will agree with me and some men would have gone with the consensus, but in general I think there’s a big gender difference here. Women have a much greater tendency to seek consensus than men. This can be a problem on criminal juries. If a person is innocent and someone wants to send them to jail for a long time, we shouldn’t compromise by sending them to prison for a short time.
The Bottom Line: Should Women Serve on Juries?
I propose this solution: Jurors should be chosen according to the sex of the people who are involved in the crime.
In a crime with a female offender and a female victim, the jury should be all women. In a crime with a male offender and a male victim, the jury should be all men. When there offender is a woman and the victim is a man or vice versa, half of the jury should be women and the other half should be men.
This solution prevents all-male juries from going too easy on pretty female criminals, and it avoids the possibility that all-male juries would not take crimes against women seriously enough. It also makes sense that people would be best equipped to judge the motivations of members of their own sex. If two men get into a violent altercation at a bar, men are going to have a much better understanding than women of the emotions at play. I’m sure there are crimes that women might commit that women would understand better than I would.
I also think there should be pollution control juries. Every pollutant is harmless in a sufficiently low quantity. The problem arises when many people emit the pollutant so that the total quantity emitted becomes too high. We need some way to determine the acceptable level of each pollutant. Right now, those levels are set by the arbitrary power of the EPA. This is a recipe for corruption. The EPA official with arbitrary power can shut down an industry (if they’re a crazed activist) or set the acceptable pollution level way too high (if they’re a plant from the polluting industry and they’re looking forward to a lucrative consulting job after leaving the EPA).
Instead, we should determine the acceptable level of pollutants by jury. Each jurisdiction should convene a jury of 12 citizens, 6 men and 6 women every few years. The jury will know the current legally acceptable level of some specific pollutant, e.g. Sulfur Dioxide. The jury will then hear testimony from environmentalists and industry members. Then the jury will deliberate and decide if they want to increase or decrease the maximum acceptable limit of Sulfur Dioxide emissions.
It makes sense for both men and women to be on a pollution control jury because pollution is a public affair. In this case, women’s tendency towards consensus is actually an advantage. The jury needs to agree on a specific level of pollution, and we don’t want the legal limit to change dramatically from year to year.
In conclusion, I think there should be a jury system in which women are jurors in some cases. The composition of a jury should be determined by the sex of the offender and victim, and pollution control juries should be half men and half women.
If the impact of female voters on economic growth over the past century has lowered the annual growth rate by just 0.2% per year (a very conservative estimate), then average annual GDP growth without women’s suffrage would have been 2.2% rather than the actual rate of 2%, and the GDP today would be 22.8% higher.
Years between 1920 and the Present: 105
Growth at 2% rate since 1920: 1.02^105 = 7.9987
Growth at 2.2% rate since 1920: 1.022^105 = 9.825
Percentage difference between counterfactual case (no women’s suffrage) and actual case (women’s suffrage): 9.825 / 7.9987 = 1.228………(22.8% increase)
Finally, I have been waiting for someone to write an article on this subject. If it would have taken longer, I would have had to do it myself. Great way to start the conversation!
Do you care about race of the jurors