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May 30, 2017

"What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment"

The title of this post is the title of this short paper by Suja Thomas now available via SSRN.  Here is the abstract:

Plea bargaining and summary judgment have contributed to the disappearance of the jury.  This short paper describes the "plea offer," "sentence" and "consensus" requirements -- three seemingly controversial but rational ways to restore the jury in our present system.

Here are a few paragraphs from the piece focused on plea bargaining:

Under the proposed plea offer requirement, if a criminal defendant does not accept the offered plea, then the prosecutor must try the criminal defendant on the charge in the proposed plea agreement along with the original charge.  In other circumstances, where the plea offer involved a charge reduction or sentencing bargaining, the defendant can present evidence of that plea offer at the trial for consideration by the jury.

Under the proposed sentence requirement, at trial, the jury would also hear information about the sentences that the defendant would receive if convicted of the different crimes and could convict based on these sentences.  Historically, juries possessed this information and could act on it.

By permitting the plea and sentence information to be presented at trial, the criminal defendant now has good reason to take a jury trial over the plea bargain.  The defendant can be found not guilty but, alternatively, if convicted, may receive the same sentence that the prosecutor offered in the plea agreement.

May 30, 2017 at 10:19 PM | Permalink


These proposals are silly. If they are trying to get rid of plea bargaining I suggest a direct route. If the complaint is that prosecutors overcharge as leverage, make the requirements for charging higher than probable cause.

Elaborate extra rules won't make the system more fair, just more expensive and prone to lawyers arguing and we sure love to argue. We have already larded the system with enough rules. The focus should be on exonerating the innocent and convicting the guilty, not cumbersome rules that permit additional, extraneous factors that can be tactically used for advantage not related to the question of guilt.

Posted by: David | May 31, 2017 9:19:17 AM

Very simple, they do not know their "Rights" as a Juror!

Posted by: LC in Texas | May 31, 2017 11:00:20 AM

If any of you lawyers are interested in filing a lawsuit to eliminate a county jail inmate system where they put state prisoners convicted of crimes into county jails, then go to The Michigan Law School Civil Rights website and look up The Texas Litigation. That set of files includes the Amended Class Action Complaint and the Settlement Order signed by Judge Laughery.

Posted by: Liberty1st | Jun 1, 2017 7:06:13 AM

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