The Disappearance of Trial by Jury by CLARK NEILY Did you know there’s only one right that is mentioned are made by prosecutors with a strong incentive both in the body of the unamended Constitution and the to maximize efficiency and convictions rates. The Bill of Rights? And that not only does the Bill of Rights resulting system of plea-driven mass adjudication is spend more words on this subject than any other, but profoundly pathological and fundamentally illiberal. it was also one of the few things the Federalists and The most significant problem with a plea-based Anti-Federalists agreed upon as system is the use of coercion being indispensable to American to obtain guilty pleas. Judges government. It’s the right to a and prosecutors assure us that criminal jury trial, and it has inducements to plead guilty never been almost completely purged cross the line from permissibly from our system by the ad hoc, motivating to palpably coercive, extra-constitutional, and often but the evidence is clearly to extraordinarily coercive practice the contrary. Thus, of the three we call “plea bargaining.” thousand people on the National Unknown at the Founding Registry of Exonerations, more and nowhere mentioned in the than 15 percent falsely pleaded text of the Constitution, plea guilty to crimes they did not bargaining began creeping into commit—a figure that surely our criminal justice system represents just the tip of the in the late nineteenth century iceberg given how resistant the and received a boost when the system is to post-convictions Supreme Court upheld it in a claims of innocence. As Federal 1970 case called Brady v. United District Judge Jed Rakoff States and insulated it from any documents in chilling detail, Clark Neily meaningful judicial scrutiny. there is every reason to believe It has since expanded to the innocent people in our system point where Justice Kennedy regularly plead guilty to crimes According to the U.S. observed in a 2012 case that plea they did not commit. Sentencing Commission’s bargaining “is not some adjunct The second problem with to the criminal justice system; it 2021 Sourcebook, 98.3 plea bargaining is that it is the criminal justice system.” favors quantity over quality. percent of federal The data bear this out. This is reflected in the current criminal convictions According to the U.S. record-low rates of arrest for Sentencing Commission’s 2021 came from guilty pleas, serious crimes such as murder, Sourcebook, 98.3 percent of rape, and robbery. Indeed, the and only two percent of federal criminal convictions arrest (or “clearance”) rate for cases went to trial. came from guilty pleas, and only homicide today is less than 50 two percent of cases went to trial. percent, while fewer than 30 Figures from the states are less percent of rapes and robberies precise, but similar. What this means is that, contrary are ever solved. When prosecutors know that most of to the Founders’ decision to put citizen participation their cases will result in guilty pleas they can afford at the very heart of the administration of criminal to pursue marginal transgressions that would not justice, ordinary people have almost no personal merit the expense and inconvenience of a full-blown involvement in deciding who gets charged, convicted, jury trial. America is by far the world’s leading jailer, and incarcerated in America; instead, those decisions with an incarceration rate five or six times that of 18
RIPON FORUM May 2022
