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November 28, 2017

"Has Plea Bargaining Destroyed the Jury Trial?"

The question in the title of this post is the headline of this new commentary at The Crime Report authored by Suja Thomas. Here are excerpts:

Despite the frequent presence of juries in media coverage of trials, the public is absent from much of the democratic process created by the U.S. Constitution.  While citizens elect officials, few participate in important daily criminal and civil justice decisions by serving on juries.  Juries decide less than four percent of criminal cases and less than one percent of civil cases.  Juries don’t determine criminal defendants’ fates, because defendants plead guilty around 95-97 percent of the time.

But why would a defendant plead guilty, when a prosecutor otherwise would be required to convince a jury to convict the defendant?  Almost invariably, the defendant pleads guilty because he or she will receive more time in prison if the case went to a jury trial and resulted in conviction.  Prosecutors use charge or sentence bargaining to “incentivize” defendants. Defendants are given less time in prison if they give up their jury trial rights and plead guilty.  In fact, even innocent people have pled guilty to avoid a longer sentence, which will be imposed, if they insist on a jury trial and are convicted by a jury.

The plea with the better sentence may be available for only a short period of time — and only before the defendant has significant information about the prosecutor’s case against him. The plea may even require the defendant to waive seeing the prosecution’s evidence and waive the indictment by a grand jury (in places where grand juries are required).

Although this system is widely accepted today, is it constitutional?

The statistics tell a disconcerting story. Ten percent of those who have been found innocent pled guilty — many times because of the severe difference in the sentence if convicted before a jury versus if pleading guilty.  What about those who are guilty?  Plea bargaining is equally troublesome in those circumstances....

In the past, the Supreme Court recognized the possible constitutional problem with significant sentence incentives for pleas over jury trials.  However, later, the Court sealed the fate of the jury trial and thus criminal defendants.

In Bordenkircher v. Hayes, the prosecutor asked the defendant to take a plea offer of five years for an alleged forged check for around $90.  He threatened the defendant with a new indictment subjecting him to life in prison, if he would not take the plea.  The defendant refused to plead guilty, was subsequently indicted by a grand jury on a new life imprisonment charge, was convicted by a jury, and sentenced to life in prison.

The defendant argued this was unfair.  His right to due process was violated when the prosecutor punished him for insisting on a jury.  But the Supreme Court decided that the defendant’s constitutional rights were not infringed.  Plea bargaining was an important part of the criminal justice system.

The Court has laid aside the Constitution and defendants’ rights in favor of efficiency.  However, the jury is enshrined in the Constitution, and defendants do not freely choose pleas over jury trials when facing much stiffer sentences if convicted by juries. 

I have argued elsewhere for jury reform including “the plea offer” and “sentence” requirements. The basic idea is if a prosecutor offers a plea bargain and the defendant decides to go to trial, the plea offer as well as the sentence associated with the plea can be placed into evidence at trial for the jury to consider.  The jury then has multiple options. It can convict on the original charge, convict on the plea charge, or not convict. In deciding on what, if any, charge to convict, the jury can consider the sentence associated with the plea charge and the sentence associated with the original charge.  This practice of considering the sentences would be consistent with historical convention.  English juries knew the sentences and often acquitted or gave partial verdicts for lesser offenses based on the sentence.

November 28, 2017 at 10:06 AM | Permalink


If defendant is paying for counsel , the $ cost is far higher 😳

Posted by: Docile the Kind Soul | Nov 28, 2017 10:42:05 AM

It was blackmail then and it still is. Plus under all State and Federal law no agreement made under duress us either legal or enforcable

Posted by: Rodsmith3510 | Nov 28, 2017 12:28:54 PM

All prosecutorial immunity from tort liability should be ended by federal law, making criminal law funding dependent on states' ending the immunity by statute. Then apply professional standards of due care. Plea deals against innocent defendants, stacked against guilty defendants, parole sharking, should be deemed intentional torts. They are already prohibited by the Rules of Conduct, and should therefore be per se torts. Because of malice (knowledge), exemplary damages apply. Nor should the tax payer be held accountable, since ethics violations are not part of the job description. Make the prosecutors carry adequate professional liability insurance.

This liability should be separate from lawyer malpractice jurisprudence. That contains not just proof of negligence or deviations, but the trial in a trial. The law should ratify straight professional liability procedure.

Posted by: David Behar | Nov 28, 2017 1:45:58 PM

Rod. Judges are totally responsible for abuses of plea bargaining, as well as prosecutors. I also support liability of judges for their failures to supervise such abuses better.

Posted by: David Behar | Nov 28, 2017 1:49:09 PM

This piece reminds me of my history of the common law professor. He was fond of noting how informal the 18th century jury trial was which permitted one jury to hear multiple trials in the same day. The gist of his point is that you can either have a system in which trials are complicated with lots of formalities but only a tiny percent get trials or a system in which trials are relatively informal and most people get one. It's almost impossible to have a system in which you can have both.

Posted by: tmm | Nov 29, 2017 10:28:59 PM

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