95 Democracy in the Criminal Justice System. On Juries and Super-Juries. Laura Roth* INTRODUCTION When criminal law experts and practitioners analyse the problems of criminal justice institutions and what to do about them, they usually focus on how unjust their decisions are (e.g. over-criminalization, inadequate defence of victims’/offenders’ rights, etc.), or on how inefficient they are in reducing crime rates. With some exceptions, not much attention is paid to the fact that, besides their outcomes, the way these institutions work is very far from how some of us think they should in a democracy, where self- government is the ideal. Most decisions are in the hands of public officials and the efforts to resolve the two kinds of problems just mentioned usually tend to bureaucratize and isolate institutions even more. The consequence is that, even if they actually become more efficient and even more just, they also end up being more inaccessible for citizens. In short, I believe that to a great extent the institutions of the criminal justice system and their decisions are illegitimate. Public officials have important amounts of discretion to make decisions that involve moral/legal issues, about which citizens (but also lawyers and legal theorists) disagree. The law is partially created when it is applied, and not a product of general democratic decisions. This feature situates criminal procedures closer to the rule of (a few) men than to the rule of law. Moreover, the mechanisms of popular participation that do exist do not seem adequate from the point of view of a relatively sophisticated account of democracy. The election of judges and prosecutors makes more sense as an institution of penal populism than of democracy: candidates run for office displaying their affinity with people’s unreflected preferences about crime and punishment, which they obtain through the media. Once officials are elected, they get the power and the discretion to rule over others. In addition, juries – the institution that is supposed to give citizens a say in the criminal process – decide only a tiny percentage of the total cases, and of the issues in those cases. More importantly, they have several characteristics that situate them very far from the democratic ideal.