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April 29, 2007

Noticing the disappearing jury trial

Adam Liptak's "Sidebar" column in Monday's New York Times is entitled "Cases Keep Flowing in, but the Jury Pool Is Idle."  As this snippet highlights, the piece notes the dwindling significance of jury trials in both civil and criminal cases:

Trials are on the verge of extinction.  They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions....

In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.  Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice.  Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”

Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments.  Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself.

In an article titled “Why Summary Judgment Is Unconstitutional,” published last month in the Virginia Law Review, Suja A. Thomas, a law professor at the University of Cincinnati, makes the perfectly plausible argument that the procedure violates the Seventh Amendment, which reserves the job of determining the facts in civil cases to juries.  When judges decide summary judgment motions, Professor Thomas wrote, they intrude on that job.... 

In 2004, in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for “leaving justice entirely in the hands of professionals.”  But that is not the theory of the Constitution, he continued, which enshrined “the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.”

April 29, 2007 at 11:35 PM | Permalink


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Tracked on Apr 30, 2007 6:07:20 AM


One wonders whether the criminal process of plea bargain en masse would be the same if drugs weren't illegal in this country. And what do we have to show for our war on drugs? Not much. Didn't we learn anything from the prohibition era?

Posted by: | Apr 30, 2007 7:46:40 AM

An excellent point because drug are a direct or indirect factor in many criminal cases and drugs also are a factor in driving up the recidivism rate.

Posted by: John Neff | Apr 30, 2007 8:25:04 AM

I am not so sure. I imagine if drugs were legal, prosecutors’ budgets would be much smaller, and they would have other caseload problems to contend with.

Posted by: S.cotus | Apr 30, 2007 9:39:16 AM

It has been the case for a very, very long time, that:

A) Plea bargains outnumbered criminal trials
B) Defendants received consideration for pleading guilty

It may well be that the rate of guilty pleas has gone up, though in modern times, I believe it has always been very high. And it may well be that the differential penalty for going to trial has gotten worse, increasing the risk defendants take by forcing the government to prove its case.

But these are directional trends, not an absolute reversal of what was formerly the case. Moreover, there is some logic to the "trial penalty." If it made absolutely no difference whatsoever if the defendant pleaded guilty or not guilty, then no defendant would ever have any incentive to plead guilty.

Since incentives to plead guilty aren't new, the question is: At what point, exactly, did this become a problem of constitutional magnitude? How do we know when that line is crossed? Surely the author isn't suggesting that whenever the defendant receives incentives to plead guilty, his constitutional rights have been transgressed?

Posted by: Marc Shepherd | Apr 30, 2007 11:58:07 AM

Marc, while it is true that most everyone benefits from plea bargaining, the penalty for exercising the right to trial should be explicit rather than covert. While Brady v. United States (1970) may be the law of the land, it is now so extreme it boarders on extortion. California district attorneys were against the Three Strikes law until they realized the leverage it gives them.

Meanwhile, Reyes's appellate counsel, Gretchen Fusilier, succeeded in getting the 9th Circuit Court of Appeals to grant a hearing in Reyes's case. Two justices noted that Reyes was offered a plea bargain of four years – which he turned down – suggesting that the D.A. didn't really believe Reyes should get a life sentence.

For cheating on a driver's test?

Posted by: George | Apr 30, 2007 2:28:48 PM

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