Thursday, April 22, 2021

Fewer jury trials, more plea deals nowadays


Many Americans who are arrested or sued waive their right, given in the Sixth Amendment for criminal cases and the Seventh Amendment for civil trials, to a trial by jury, and that marks a change, decades in the making, in the American justice system, the New York Times reports.

The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Seventh Amendment:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Just 20 years ago, 3,200 of 63,000 federal defendants were convicted in jury trials; last year, only 1,650 jury convictions were handed down out of 81,000 defendants. That is, the number of prosecutions has risen over the last two decades, but the percentage of cases heard by a jury has decreased, as has the absolute number of jury trials.

What’s happening is that prosecutors are negotiating plea deals, in which defendants plead guilty in exchange for a reduced sentence. Mandatory sentencing laws have generally given more power to prosecutors, because they are able to hold the possibility of a stiffer sentence over defendants’ heads if the case should go to a jury. Prosecutors often exchange lighter sentences for testimony by the defendants in bigger cases about which the defendants have knowledge.

“This is what jury trials were supposed to be a check against—the potential abuse of the use of prosecutorial power,” the Times quoted Frederick P Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, as saying.

The dramatic increase in the percentage of criminal cases that are plea bargained has been noted for several years in legal journals, but the stories are just now hitting the mainstream press.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” the Prison Legal News site quoted University of Utah law professor Paul Cassell as saying. Mr Cassell was formerly a conservative federal judge and prosecutor. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

And the reduction in the number of criminal trials held before a jury has caused a few other side effects as well.

  • Court stenographers don’t make as much money as they used to, since their income largely depends on the number of pages of testimony they transcribe.
  • Law clerks could spend their entire internship with a judge without participating in a single trial, leaving them less experienced to adjudicate trials than they were in recent decades.
  • Fewer Americans are serving on juries, reducing the “American” experience a little. “When trials vanish, citizenship also suffers,” the Times quoted US attorney Preet Bharara as saying.

At the federal level, the numbers are bad as well: In 1977, about one in four defendants opted for a trial by jury, compared to about one in 32 in 2012.

Civil cases have seen the same trend, although sentencing doesn’t really apply. Defendants and plaintiffs alike are just unwilling to leave their financial interest to chance, at the hands of a random jury of 12 people; they’d rather negotiate a backroom deal.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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