Title: "Choice by Chance: An Exploration into the Practice and Virtues of Using Lotteries in Public Choices"
In May of 2000, Philip Givens was facing trial for a maximum sentence of life in prison for the death of his girlfriend Monica Briggs. After deliberating for about nine hours over two days, the jury members all agreed that Givens was guilty of a crime: they were just not sure of exactly what crime. Some were holding out for manslaughter, while others were holding out for murder, and the jury had reached an impasse. Fearing a hung jury, the twelve jurors decided to flip a coin, a silver dollar even, on the matter: heads for murder, and tails for manslaughter. The coin landed heads and the jury convicted Givens of murder.
According to the account from the jury foreman, the jurors thought their procedure was legal because they had all agreed to it. Their procedure came to light in the court before the verdict, and was not well received. The judge presiding over the case, Kenneth Conliffe, was furious with the jury and declared to them that "'[y]ou can't decide a defendant's fate by flipping a coin.'" He then declared a mistrial. Givens's lawyer thought it was "'scary'" that a court verdict would be reached by the flip of a coin, especially in a murder case. He said, "'it kind of blows your mind ... I think they had a lapse in judgment, and I'd like to think it doesn't go on very often."" The Commonwealth's attorney (the elected prosecutor of felony crimes in Kentucky) echoed similar sentiments: "'[I]t has to be a decision.... It can't be some kind of gamble.'" One commentator, though he sympathized with how draining the task of a juror can sometimes be, certainly thought it good the judge had declared a mistrial. He feared that, had the jury's verdict stood, such aleatory proceedings might be copied by juries in other court cases. They might even spread to other areas of public decision-making: "Soon, we could have Congress deciding on legislation by cutting cards. Or the president might plunge us into war with Sweden because a coin came up tails."
Why would anyone intentionally want to relinquish a decision to chance, let alone an important one? The basic explanation for the opposition to this practice strikes us as obvious: decisions should be made by exploring, evaluating, comparing, and weighing reasons for each of the options available in a choice, and then selecting the best option. Holding a lottery between two or more options provides each of them with a probability of being selected: it can lead to an inferior option being selected and is an abandonment of rationality, morality, and responsibility. Such a practice should not be condoned in any case, but particularly not when the stakes are really high, as is often the case in the courtroom.
Still, is this all there is to be said about the use of lotteries in public choices? Even if lotteries are a terrible idea for decision-making by juries in criminal trials, as the anecdote about the Givens trial above well illustrates, practice suggests that decision-making by lottery has virtues that give good reason for their employment in a number of other choice contexts:
(1) Many countries have in place procedures to involve citizens as judges and jurors in trials; selection with the help of a lottery is a common feature of such procedures.
(2) The allocation of professional judges to particular cases in the United States commonly proceeds by lottery. Such practices are also common in other countries.
(3) When there is a tie in votes on some matter, the deadlock is sometimes broken by lottery. One most commonly sees this type of application of the lottery with tied elections for political and administrative offices in small localities.
(4) Historically, there are numerous examples of political systems which allocated political and administrative offices as well as particular public tasks by lottery. The practice was widespread, for example, in Ancient Athens and also appears to have occurred in other Ancient Greek city states; it was also extensive in the northern Italian communes that sprung up during the eleventh and twelfth centuries, most notably Venice and Florence.
(5) Though allocating public functions by lottery is in modern society largely confined to the judicial system, more and more randomly-selected citizen bodies are employed in public decision-making processes outside of the judicial system. Such randomly-selected citizen bodies have been employed for a wide variety of policy issues in a wide variety of ways, ranging from creating proposals for electoral reform to providing input on the policies of public energy utility companies.
(6) Educational institutions sometimes determine by lottery which students they will accept and which they will reject. This practice is seen both at the primary and secondary levels of education, as well as at higher levels of education.
(7) Lotteries are occassionally employed in compliance problems. The IRS, for instance, distributes some of its tax audits randomly.
(8) Public lands are sometimes distributed via lottery schemes.
(9) Lotteries are often employed to various ends in schemes that deal with scarcity issues in housing.
(10) Lotteries are frequently employed to distribute licenses, permits, or other legal rights such as for the purpose of working, broadcasting, or hunting.
(11) There is a long history of conscripting soldiers through draft lotteries, particularly in periods of extensive conflict. Currently, some countries still employ draft lotteries, including Thailand, Mexico, Denmark, and Bermuda. If the US Congress were to order a draft, the random selection procedure installed in 1969 would still have to be followed according to US administrative law.
(12) Besides the military draft, lotteries have been employed to make numerous other "tragic choices". Until the twentieth century, drawing straws for the purposes of survival cannibalism was common among shipwrecked sailors. This practice was even judged legitimate under the right circumstances by an American court in the nineteenth century (United States v. Holmes). In a modern context, scarce medical resources are sometimes allocated by lottery.
Decision-making by lottery is often viewed as a rather peculiar practice, but as these examples illustrate, it hardly deserves to be viewed in this way. Lotteries are used frequently in a range of applications, often to make decisions of substantial importance. One would have to be very cynical to attribute all these examples merely to superstition and irrationality. They strongly suggest that there are virtues to decision-making by lottery, which deserve to be explored.
My Ph.D. dissertation, "Choice by Chance", aims to substantially enhance our understanding of the use of lotteries in allocating scarce goods and public roles. It addresses two main questions about this practice:
(1) What exactly is the practice of allocation by lottery, and how widespread and important is it?
(2) Under what circumstances and why would it be justifiable to use a lottery in a distributive scheme?
If you would like to learn more about how lotteries are used in practice such as in the examples above, click here for the first chapter of my Ph.D. dissertation. (If you would like to cite any of the information in this chapter, you can use the following details: Burgers, Jan-Willem. 2013. Lotteries in practice. In Choice by Chance, ch. 1, Ph.D. diss., Australian National University.)
 McEvoy, George. 2000. Other juries will try coin flip: You can bet on it. Palm Beach Post, Apr. 29, 11A.
 Associated Press. 2000. Jury flips coin to decide murder over manslaughter, April 25.
 McEvoy 2000.