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April 12, 2015

"Defending the Jury: Crime, Community, and the Constitution"

9781107650930The title of this post is the title of this notable new book authored by Professor Laura Appleman. Here is a brief description of the book via the publisher's website:

This book sets forth a new approach to twenty-first-century criminal justice and punishment, one that fully involves the community, providing a better way to make our criminal process more transparent and inclusive.  Using the prism of the Sixth Amendment community jury trial, this book offers fresh and much-needed ways to incorporate the citizenry into the procedures of criminal justice, thereby resulting in greater investment and satisfaction in the system.  It exposes the various challenges the American criminal justice system faces because of its ongoing failure to integrate the community's voice. Ultimately, the people's right to participate in the criminal justice system through the criminal jury — a right that is all too often overlooked — is essential to truly legitimizing the criminal process and ensuring its democratic nature.

Slate provides a helpful discussion of the book in this piece titled "No Deal: Should prosecutors be forced to have their plea bargains approved by juries?". Here is how the Slate piece starts:

One of the most reliably shocking facts about the American justice system is that 97 percent of criminal convictions are the result of plea bargain negotiations — and that jury trials, which many people think of as our society’s primary vehicle for determining a defendant’s guilt or innocence, have become vanishingly rare.

Why are plea deals so common?  Because a guilty verdict at trial tends to result in a much longer prison sentence than what a defendant can get if he or she agrees to a plea agreement.  For many people, this means admitting guilt on some but not all of the charges brought against them and waiving their right to a jury trial in exchange for a shorter sentence.  In many cases, this is an irresistible option, especially because, as the late Harvard Law School professor William Stuntz explained in his landmark book, The Collapse of American Criminal Justice, the sheer number of laws on the books makes it possible for prosecutors to charge people with so many crimes that the risk of going to trial and being convicted of all of them — as opposed to copping to just one or two — carries an unfathomable penalty.

There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise.  But critics see it as a coercive end run around the rights of the accused — especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them — as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done.  One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process — by convening a “plea jury.”

April 12, 2015 at 11:41 PM | Permalink


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Decades ago [prior to the early 1970s overhaul of Ohio’s criminal code] an innocent defendant went to trial on an armed robbery charge.

The guilty co-defendant, also charged with armed robbery, pleaded guilty to unarmed robbery and was on the street in nine MONTHS !

The innocent one was jury convicted and sentenced , as I recall , 1-25 YEARS for armed robbery •

Posted by: Docile Jim Brady @Bend, OR 97702-3212 | Apr 12, 2015 11:58:17 PM

As a companion to Prof. Appleman's book, Examining Wrongful Convictions might address the shortcomings of a "plea jury" because it would suffer the same limitations a full jury does due to the adversary system.

Posted by: George | Apr 13, 2015 12:22:52 AM

Laura I Appleman, Professor of Law, J.D. Yale University. Dismissed.

Not reading this trash.

Question for those who are reading it. Are we adding a new procedure here? If we are, this vile feminist lawyer needs to test it first in a small jurisdiction ,and to demonstrate it achieves its intended effect. Before she has data, this is only rent seeking ipse dixit, trash from a vile feminist rent seeking lawyer.

Posted by: Supremacy Claus | Apr 13, 2015 12:50:46 AM

S.C. Take your blue pill on Monday, not the red one.

Posted by: anon1 | Apr 13, 2015 10:15:15 AM

Unchecked assumptions:

Defendants plead because their sentence is so much higher after trial.
Prosecutors unfairly and grossly overcharge
Public Defenders are overworked

While these undoubtedly occur, in my nearly 20 years of experience in the criminal justice system they are the aberration, not the norm. Frankly, given discretionary sentencing, it is the judges who incentivize defendants to plead with a generous offer that substantially undercuts the prosecutor.

Regardless, how exactly is another jury trial going to generate less work for PDs or stop defendants from taking generous offers instead of going to trial? This is idiotic and is it clear that Prof. Appleman needs to spend some time in a trial department rather than the lofty confines of academia and criminal appellate work.

More process is not always better. Just say what you really want professor, prosecution to be so expensive that there are fewer of them.

Posted by: David | Apr 13, 2015 10:40:10 AM

Anon1. Aren't you the one who believes in mind reading, future forecasting and that the standards of conduct should be set by a fictitious character? Why fictitious? To make the standards objective, of course. This fictitious figure, they did not tell any 1L in their cult indoctrination is a religious figure, a noteworthy religious figure, to borrow Prof. Berman's phrase. Thus, all of youse, who believe in those supernatural doctrines are in open insurrection against the constitution of our secular nation.

I agree with David. He is in the business and understands well. I am with the victims. I understand well, and am just fed up more than he is.

Posted by: Supremacy Claus | Apr 13, 2015 4:10:14 PM

As someone who was actually accused of Federal crimes, went to trial and was acquitted on all counts, I know that I personally could not accept a plea deal (not that I was ever offered one). It is a horrible situation to be in...in this day of internet research to know that such a high percentage of people, even if innocent, are counseled to just...plead guilty and get it over with.

But in addition to being branded a criminal FOR LIFE (see articles on the collateral consequences of a conviction) and whatever possible prison sentence I would be dealt (I faced a possibility of 20 years), asset forfeiture on top of it all was just too much to bear to admit to something I didn't do, and KNEW I didn't do.

Of course, I suffer along with my spouse, who took the same gamble (went to trial), and ended up with a very very long sentence. There was the full brunt of the trial penalty for you. A married couple...both exercise their rights...one walks away completely free...vindicated by the jury...while one is totally demolished by the long cries of "guilty, guilty, guilty". Do I thank the jury? or curse them?

Posted by: folly | Apr 13, 2015 4:22:53 PM

AND to add to my comment....I WOULD SAY...that based on the Slate article...YES...
I think it would be helpful to have a jury review the sentence. AGAIN...as someone who has actually been accused of a non-violent, non-drug related Federal Crime (I was actually accused of Buying a Boat (3 counts on the indictment))...IF I had actually been guilty, I would want a jury to act as a buffer.
On the other hand, I got to read the Grand Jury testimony that led to my indictment, and was APPALLED. "That's IT???!!!! about 2 pages of testimony by a Government witness led to charges that COULD have resulted in a 20 year prison sentence if the judge was in a bad mood?" So, I'm sure the Gov and the Courts would find a way to twist an additional process against the defendants as well, but I would take ANYTHING that might mitigate your position as a defendant.

Posted by: folly | Apr 13, 2015 4:32:33 PM

Defendants go to trial at their peril. Mandatory minimums, plea bargaining and the ever increasing use of conspiracy charges have resulted in this over incarceration.

Posted by: beth | Apr 13, 2015 6:49:02 PM

yes, I was accused of conspiracy too, and the jury acquitted me of THAT as well. The prosecutor, after the close of ALL evidence, and despite the fact that jury instructions should have been approved by all the parties weeks in advance even got the judge to add "aiding and abetting" instructions, and the jury STILL acquitted. It all comes down to....I never should have been accused in the first place. BUT I still thank God that I could afford counsel of my choosing...so many people can not.

Posted by: folly | Apr 13, 2015 8:18:20 PM

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