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July 18, 2018

"The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges"

The title of this post is the title of this article authored by Robert Conrad, Jr. and Katy Clements published earlier this year that I just came across and that is especially timely in light of the recent NACDL report on the "trial penalty" (discussed here). Here is its abstract:

Federal criminal jury trials are dying.  Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of cases disposed of by jury trial declined by forty-seven percent.  During the same ten-year span, the portion of defendants’ cases disposed of by jury trial similarly declined by almost forty percent.  Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see.  The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic resolutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury.

This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s.  Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate.  Prior scholarship has blamed mandatory minimum penalties and mandatory Federal Sentencing Guidelines as the principal agents of the trial decline.  This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results.  Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a prosecutorial push during the Obama Administration to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline.

By tracing trial statistics in the twenty-first century, this Article identifies new factors, largely unexamined in the vanishing trial literature, that have arguably driven trial numbers to even lower levels.  Specifically, the authors contend that Booker, changes in Department of Justice policies, and other extrinsic factors outside the criminal justice system have further marginalized the existence of trials and juries.  The authors lament that the sentencing hearing has replaced the trial as the paramount proceeding in most criminal cases and explore the consequences of plea agreements supplanting the public square openness of trials.  By doing so, the authors hope to embolden the players in the criminal justice system to not go gentle into a trial-less system, but rather, to rage against the dying of the trial light.

July 18, 2018 at 09:06 AM | Permalink


I recall in my younger days an instance where I was in the parking lot at a music concert, smoking marijuana in a parked car with a friend, when we were approached by undercover officers. The incident ended with me receiving a citation for possession small amount of marijuana and possession of paraphernalia. I was bull-headed at the time and decided to dig my heels in and fight, so I hired an attorney who filed a motion to suppress. After several delays and continuances we finally go to court, where he argues the suppression issue and loses. I tell him I want to have a jury trial then. I went and sat in the hallway outside the courtroom while the attorney went to talk to the prosecutor.

When my attorney came out to the hallway, I got my civics lesson for the day. He said he talked with the judge and the prosecutor and informed them I was ready to go to trial. He then told me that the judge's response was (this isn't verbatim) 'if your client chooses to waste the courts time by taking this to trial, and he is found guilty, tell him I will sentence him to the maximum penalties allowed under both the marijuana and paraphernalia statutes.' I believe at the time the paraphernalia carried a maximum year in prison and the possession small amount carried 30 days in prison. Needless to say, I took the prosecution's offer of 6 months probation. I was pretty confident I was going to lose (I had been smoking marijuana, I just wasn't the one holding the pipe when the cops approached), and the judge's statement had the effect it was intended to.

Of the many lessons I took away, one was that jury trials, especially when the defendant is "obviously guilty," (I mean, guilt is pretty much conceded in a suppression hearing) constitute an inefficient use of the court's time, which is one of its most scarce resources.

Posted by: anonuser879 | Jul 18, 2018 12:02:45 PM

I do have to commend the defense bar on this issue. Managing to get the majority framing as "trial penalty" rather than "plea leniency" is brilliant politicking.

Posted by: Soronel Haetir | Jul 18, 2018 1:37:29 PM

Seems like its politicking either way you frame it, Soronel. I think your preferred terminology will depend on whether you generally think sentences are too high or too low.

Posted by: Curious | Jul 18, 2018 9:45:00 PM

Jury trials will continue to fall into obscurity. Here in California we continue to put more and more process, procedure, and burdens in the run-up to a jury trial. Because of all this process getting to trial is extraordinarily time consuming, expensive and I daresay it inefficient, it is no surprise that lawyers and judges simply sit down and agree to what the outcome should be. Calling it a trial penalty or acceptance of responsibility benefit, it makes no difference. The goal is to settle cases and everyone in the system wants this, judges, prosecutors, and defense lawyers (for the guilty at least, which most defendants are).

When I first started 20 years ago there was little negotiation once a case was set for trial, the question by the judge was are you ready for trial? Then there was a very strong push for settlement by our trial judges, but I sometimes felt that I wasted more time trying to settle a case than it would take to try. Now I spend more time with pre-trial litigation than the jury portion of the trial. Some of this is due to the nature of the cases handled over the years but most of it is due to fundamental changes in the culture and changes in the law.

If you want jury trials to come back, don’t make it so difficult and painful for either side to get there or for the defendant to demand his/her constitutional right.

Posted by: David | Jul 19, 2018 12:17:13 AM

The trial was cool in 1275 AD. Today it is a form of lawyer quackery in violation of the Establishment Clause. It is ridiculous. Why does it persist? Billable hours, and only billable hours. These are the sole benefit.

Its structure came from the disputation method of Scholasticism, a church doctrine, violating the Establishment Clause of this secular nation. It looks like a church. It is run like a church service. People are wearing church garb, and sitting at a church altar. One stands, one sits. One stands again. One sits.

Then two buffoons put on a Broadway theater production. The smartest, and most experienced person in the room is absolutely silenced. If a judge were to even drive by the scene of the crime, he would be removed and impeached for his "unfair" ex parte activity.

Also Latin is only spoken by members of the Catholic Church. All Latin utterances are illegal, in violation of the Establishment Clause.

Then the lawyer has the nerve to call this theater production the best way to finding the truth, 1275 AD edition, perhaps. There is zero scientific validation for the outcomes of these farces. The modern trial is 100% lawyer quackery. When no money is spared, as in death penalty cases, the exoneration rate is around 20%. This $million farce has a false negative rate of 20%.

Then, instead of the verdicts being reviewed by experienced investigators for factual error, know nothing judges, bookworms from Ivy law schools, who know shit, review mistakes in law only, and exclude factual arguments.

Your profession is a horrible joke and a prank on our nation.

Posted by: David Behar | Jul 19, 2018 11:04:19 AM

Do you have a source on the trial coming from the disputation method of Scholasticism, David? I thought it originated (kinda) from the Assize of Clarendon.

Posted by: Curious | Jul 19, 2018 5:29:46 PM

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