It’s that time of year again: The Bundys are going to trial.
This fall, brothers Ammon and Ryan Bundy and their father, Cliven, will face charges over a standoff with federal officials in a dispute over federal lands in Nevada.
Many are wondering if they’ll be let off the hook. The two Bundy brothers were acquitted in an October 2016 trial for a different standoff in Oregon. The jury’s “not guilty” verdict on conspiracy charges for the Oregon standoff struck much of the public as shockingly lenient.
As a law professor who researches rural land use and juries, I’ve found that both conflicts over public lands and jury decisions often bring up the same question: Who gets to decide what justice is in America?
Geography and juries
Geography matters in the U.S. justice system.
The Bundy trials – and the trials of their supporters, several of whom also walked free for the 2014 standoff earlier this year – have made this clear. Trial outcomes can vary depending on where they take place. The Bundy trials to date may well have gone differently in front of juries from Manhattan or Miami.
Part of the geographical subtext is that the Bundy family is not alone in their anti-federal sentiment. Most westerners want to see federal lands stay federal and people are rightly disturbed by the tactics of the Bundys and other militant, anti-federal “Sagebrush Rebels.” Yet, other scholars and I have argued that there is a kernel of truth to their complaints.
Namely, the Bundys and their supporters claim that the federal government is “tyrannical.” A less militant version of that sentiment is that federal agencies could be more fair, consistent and inclusive with local communities in the region. The Department of Interior manages about one-fifth of the land in the United States through the National Park Service, the Fish and Wildlife Service and the Bureau of Land Management. Monitoring and enforcing regulations on this vast territory is difficult. Many western communities think federal agencies manage public lands arbitrarily or unfairly.
A frequent criticism of these agencies, who have a daunting mandate with limited resources, is that they are inconsistent. Another is that they can be unpredictable. For instance, the Bureau of Land Management allowed Cliven to graze his cattle illegally for 20 years, which could look like tacit approval. Local communities have also felt excluded from agency decision-making or looked down on by federal representatives.
In an unusual move, one juror in the October 2016 trial spoke out after the trial. The anonymous juror accused the prosecution of “arrogance” and an “air of triumphalism,” which may suggest a view of federal representatives as elitist outsiders. However, he also emphasized that “not guilty” did not mean “innocent.” He insisted that the acquittal was not a sign that the jury agreed with the Bundys’ stances. Nonetheless, the populist-cowboy tone of the Bundy trials underscores the subjectivity of justice; one person’s terrorist may be another person’s folk hero.
Race and juries
Race also plays a role in the Bundy cases.
Some observers shocked by Ammon’s and Ryan’s 2016 acquittal noticed that their jury entirely comprised white people. “All-white jury” tends to be used synonymously with “unjust jury.”
Like geography, race matters to juries. It’s not as simple as “white people vote this way and black people vote that way,” or that all-white juries are automatically unfair. However, social science studies have shown that jury demographics affect outcomes. For instance, white jurors are substantially more likely to favor the death penalty in murder cases. Generally, more diverse juries are believed to deliberate for longer, make fewer factual errors and discuss more information, including questions of race.
Yet, studies have shown that courts in the United States often don’t do a good job of making juries representative of the population. “All-white” can also mean unrepresentative. Unrepresentative, in turn, suggests undemocratic. Race and geography interact, too: What counts as representative depends on the local population, and different courts have different procedures for picking their juries.
In the 2016 Bundy trial, the optics were troubling for many. At a time when people of color comprise most of the prison population, it may have looked as if the all-white jury in this case was lenient with the Bundys. The Bundys’ white privilege was questioned as law enforcement’s relatively gentle treatment of them at the 2014 standoff stood in contrast to the police killings of Michael Brown and Eric Garner that same year. Majority-white juries have also seemed lenient with police officers accused of killing people of color. Thus, it is not a stretch to infer from this case confirmation of a dual legal system: a lenient one for white people and a harsh one for people of color, both of which exclude people of color from decision-making.
Juries are designed to be a check on government overreach. Yet, when juries are not representative, they may become just another vehicle by which the powerful wield influence. In this light, the Bundys’ October 2016 trial by all-white jury does look problematic, as only 76.4 percent of Oregon’s population identifies as “white alone.”
The Supreme Court has addressed questions of how juries represent the population and established some standards to ensure minimal representativeness. For example, the pool of people called to the courthouse for jury selection (known as “the venire”) must represent a “fair cross-section of the community.” However, juries consistently underrepresent people of color, the young, the poor and other groups. This lack of representativeness in turn affects outcomes and undermines the public’s trust in the criminal justice system.
Law and distrust
So much is at play in the trials of the Bundys and their supporters: the debatable phenomenon of white, rural, male, working-class alienation; longstanding conflicts over public lands; the role of race in the criminal justice system; and the deep racial and geographical divisions that weigh on the country.
Perhaps the clearest theme is that distrust of our legal institutions abounds, fueled by both the perception and reality of being excluded.