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June 25, 2010

"The Plea Jury"

The title of this post is the title of this terrific and provocative new article by Laura Appleman now appearing in the Summer 2010 issue of the Indiana Law Journal. Here is the abstract:
This Article argues that it is time to reform the much-criticized plea-bargaining process by restoring the Sixth Amendment jury trial right back to criminal adjudication.  My proposal would incorporate the local community into the guilty-plea procedure through the use of a plea jury, thus solving a multitude of problems within the criminal justice system.  In a plea jury, a lay panel of citizens would listen to the defendant’s allocution and determine the acceptability of the plea and sentence, reinvigorating the community’s right to determine punishment for offenders.  My goal is to return the Sixth Amendment community-jury right to its proper place by envisioning its integration into the guilty plea, based on recent Supreme Court decisions, punishment theory, criminal justice policy, and modern procedural concerns.  In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty-plea procedure.

June 25, 2010 at 01:20 PM | Permalink


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This would be disastrous. Juries are nothing but prejudice and bias. Sure some judges are the same, but more likely then not, the Judges understand what fairness is. Let's just keep the judges into deciding what pleas are fair or not. Not juries.

Posted by: N/A | Jun 25, 2010 4:40:00 PM

cute but ass backward. This would be a direct violation of the constutional requirement that a defendant be given a trial by a jury of their peers.

Posted by: rodsmith3510 | Jun 25, 2010 4:48:50 PM

What a rediculous proposal.... A for creativity. F for wisdom.

Posted by: anon | Jun 25, 2010 5:08:40 PM

It is fair to guess, I think, that more deals would be rejected for being too lenient than would be rejected for being too harsh.

Posted by: ohwilleke | Jun 25, 2010 5:15:29 PM

1) Judges should be professionals, not lawyers. They should be able to investigate the case, and to not rely on inexperienced prosecutors. They should be able to address false convictions in plea bargains.

2) Juries judge likability, and little else. Send in a chesty young female prosecutor, and you have them. There is no validation of the jury as a superior method of truth detection. If it has the wisdom of a crowd, that is canceled by excluding any with knowledge. If they are an objective, uninvolved neutral party, that is canceled by the second, non-secret vote. After the first secret vote, the verdict reflects the opinion of the biggest loud mouth.

3) The plea bargain causes a misleading underestimate of crime incidence. Prisoners are counted and treated in accordance with the crime conviction, not their real crime.

4) The above scheme requires more lawyer work. It is a type of lawyer theft and a proposal for lawyer rent seeking.

Prof. Berman throws out these left wing articles like a shark hunter throws bloody bait fish in the ocean.If the aim is to provoke, that is a good one. If he believes these lying libs, that is not good.

Posted by: Supremacy Claus | Jun 25, 2010 5:52:13 PM

If America cared about reviving Sixth Amendment trial rights it would require prosecutors to take to trial (in front of a judge or jury) every citizen in jeopardy of losing liberty.

If the system's too small and sluggish to handle all the cases prosecutors bring now, then fewer citizens should be prosecuted or the system should be expanded to enable it to keep up...IF Sixth Amendment rights are truly important.

IMO the system's Sixth Amendment shortcomings stem mostly from the coercive powers the government employs to discourage citizens (innocent, wrongly accused and guilty alike) from using trial rights. How would plea-juries quibbling over punishments in the wake of strong-armed confessions fix that?

Posted by: John K | Jun 26, 2010 10:15:53 AM

they wouldn't BUT what they would do is make the jury an accessory after the fact in the govt's continual violation of the u.s. consitution and the blackmail involved in the plea bargain system

Posted by: rodsmith3510 | Jun 26, 2010 1:37:00 PM

John K --

In a post maybe ten days ago, you gave me a sincere compliment about my ethical standards. If I recall correctly, it came in a thread in which I had discussed my distaste for plea bargaining, even while I recognize the reasons it's done. The only thing I want to do here is let you know that I saw your post and appreciate your generosity.

Posted by: Bill Otis | Jun 26, 2010 4:22:16 PM

Thanks, Bill.

Posted by: JohnK | Jun 26, 2010 6:25:06 PM

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