Bring Back The Jury Trial
September 17, 2018 by psb40
By Clark Neily, Vice President for Criminal Justice, Cato Institute
Today’s criminal justice system differs from the one prescribed by the Constitution in a particularly striking way: The lack of jury trials. I believe this offends both the spirit and, in cases where the defendant’s decision to forego a jury trial is not truly voluntary, the letter of the Constitution.
For the Founders, the criminal jury was not some quaint nod to participatory democracy, nor did they share the modern misconception of the criminal jury as a purely fact-finding body. Instead, they understood that an equally if not more important role of jurors is to protect their fellow citizens from the illegitimate application of criminal laws. (If you’re wondering what might constitute an “illegitimate application of criminal law,” consider that the federal mandatory minimum for growing 1,000 or more marijuana plants—a modest commercial operation in a place like Colorado or Oregon—is 10 years in prison. Ten. Years.)
Article Three of the Constitution provides that “The Trial of all Crimes…shall be by Jury.” And the Bill of Rights devotes more words to the topic of juries than any other subject. At the Founding, criminal proceedings were, virtually without exception, resolved by juries, and plea bargaining was unknown. Today, it’s the opposite: 95% of criminal convictions are obtained through plea bargains, and criminal jury trials are practically unknown—especially in the federal system.
To appreciate the significance of that development, consider the following metaphor. To someone who did not understand the role that honeybees play in nature (they are the world’s most important pollinator of food crops), the elimination of a single, sometimes annoying species of insect might seem like no big deal. But in fact it would be devastating, both for the ecosystem and for individual human beings. So it is with criminal jury trials, the practical elimination of which has been an unmitigated disaster for liberty, limited government, and the rule of law.
But unlike the recent global die-off of honeybees, there is no mystery about what is killing off the criminal jury trial: Coercive plea bargaining. For those who have never experienced coercive plea bargaining and aren’t sure what it looks like, here’s a taste:
Imagine you’re looking at amandatory minimum sentence of 10 years</ain prison for some non-wrongful act like growing marijuana plants on your family farm. But the charge-stacking prosecutor has included a conspiracy count, so you’re actually looking at a potential life sentence if things go badly. You don’t have money to hire a lawyer (perhaps because the government has seized all your assets using civil forfeiture for the specific purpose of impairing your defense,which is a thing that actually happens). So, like 80% of criminal defendants, you’ll get an overworked, under-resourced public defender whom you might meet for the first time on the day of your trial—a day that could be several years in the future, particularly if you’re unfortunate enough to be arrested in a jurisdiction thattrains its prosecutors to delay trials in order to keep defendants rotting in a dirty, dangerous “hellhole” like Rikers Island. And it’s not just your future that hangs in the balance; prosecutors have been less than subtle in noting that the farm on which you (allegedly) grew the marijuana technically belongs to your parents. “Say, that’s a nice family you got there—be a shame if something happened to it.”
Are you likely to consider a plea offer regardless of whether you’re guilty or not? You’d better believe it.
And in fact we know through DNA analysis, drug-testing, and other scientific means that innocent peopleroutinely plead guilty to crimes they did not commit, including even heinous crimes like rape and murder. In a seminal 2014 article titledWhy Innocent People Plead Guilty, Judge Jed Rakoff explains just how rigged the system is against the average defendant and notes that fully ten percent—ten percent!—of people exonerated by the Innocence Project using DNA evidence confessed to crimes they did not actually commit. Moreover, a forthcoming article in this year’s Cato Supreme Court review by Professor Lucian Dervin, titled Class v. United States: Bargained Justice and a System of Efficiencies, describes in chilling detail a growing body of social science research that shows just how easy it is to get people to confess to things they did not do. Simply put, the pathology of coercive plea bargaining is real, the consequences are grave, and we are just beginning to understand how pervasive it appears to be.
Trying to determine the line between a constitutionally permissible plea bargain, on the one hand, and constitutionally impermissible coercion, on the other, would require an entirelaw review article, or even a book. Suffice it to say that the judiciary, while recognizing that there is such a line, has made zero effort to police it, even as plea bargaining has come to supplant jury trials as the default mechanism for resolving criminal charges in America. So is there anything we can do besides waiting for judges to get off their hands and address the serious constitutional concerns—both individual and structural—posed by coercive plea bargaining?
In fact there is. One way to ameliorate the power imbalance that enables coercive plea bargaining is to better equip juries to play theirtime-honored role of ensuring that prosecutions are not only factually justified, but legally and morally justified as well. Indeed, we could radically reset the entire plea-bargaining calculus by ensuring that jurors are advised of the following three things (at the defendant’s option): (1) likely punishment if they vote to convict; (2) substance of any plea offers made by the prosecution; and (3) the government-constraining role of conscientious acquittal (sometimes referred to imprecisely and pejoratively as “jury nullification”) across centuries of Anglo-American law. Although judges could permit jurors to receive this information, they routinely refuse to do so based on the mistaken and illogical premise that even though jurors have the authority to engage in conscientious acquittal, they should neither be advised of that power nor provided with factual information (such as the likely consequences for the defendant of a guilty verdict) that would enable them to exercise it wisely. Of course, official suppression of truthful information is the exception in America and not the rule, and it may well be that this particular form of censorship will not withstand conscientious scrutiny from a properly engaged judiciary—particularly one that gives significant weight to Founding-Era practices like conscientious acquittal and fully-informed juries.
If judges will not protect us from coercive plea bargaining, then we can at least protect each other.
 21 U.S.C. § 841 (2010).
 U.S. Const. art. III, § 2.
 See U.S. Const. amend. VI-VII.
 Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014), https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/.
 21 U.S.C. § 841 (2010).
 See Chanakya Sethi, The Big, Bad Freeze, Slate (Feb. 26, 2014), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/kaley_v_united_states_terrible_supreme_court_decision_lets_the_government.html.
 George Joseph & Simon Davis-Cohen, Internal Documents Reveal How Bronx Prosecutors Are Taught To Slow Down Cases, The Appeal (Aug. 2, 2018), https://theappeal.org/internal-documents-reveal-how-bronx-prosecutors-are-taught-to-slow-down-cases/; Laura Italiano, How Rikers Island became the hellhole it is today, N.Y. Post (Apr. 4, 2017), https://nypost.com/2017/04/04/how-rikers-island-became-the-hellhole-it-is-today/.
 Radley Balko, Faulty drug field tests bring false confessions, bad convictions, Wash. Post (Feb. 11, 2016), https://www.washingtonpost.com/news/the-watch/wp/2016/02/11/faulty-drug-field-tests-bring-false-confessions-bad-convictions/?noredirect=on&utm_term=.50d4836c4540.
 Rakoff, supra note 4.
 Lucian Dervin, Class v. United States: Bargained Justice and a System of Efficiencies, 2018 Cato Sup. Ct. Rev. (forthcoming Sept. 2018).
 See Cynthia Alkon, Hard Bargaining Plea Bargaining: When Do Prosecutors Cross The Line?, 17 Nev. L.J. 401 (2017).
 See generally Clay Conrad, Jury Nullification: The Evolution of a Doctrine (2013).