Certainly the Bill of Rights envisioned a criminal justice system in which jury trials were the norm:
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 . . . ; 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 defence.
Now hardly any defendant faces a jury. “In fiscal year 2012, 97 percent of all federal drug convictions were secured by guilty pleas,” notes Human Rights Watch in its new study, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.” (The Atlantic published an article based on the report.) An article for the American Bar Association reports, “[O]ur federal courts actually tried fewer cases in 2002 than they did in 1962, despite . . . more than a doubling of the criminal filings over the same time frame.”
At the state level, “97.6 percent of all Colorado felony convictions result from plea bargains, not jury trials,” I reported last year. (See also my op-ed on the subject for the Gazette.)
What’s responsible for the withering away of the Fifth Amendment? In short, legislators have empowered prosecutors to threaten criminal defendants with insanely long prison sentences in order to coerce them into accepting plea deals. When defendants can plead guilty and sit in prison for a few years or go to trial and risk sitting in prison for a few decades, it’s no surprise that many plead guilty—whether or not they are guilty.
Of course, the broader problem is that legislators have empowered prosecutors to send people to prison for years or decades on end for activities that violate no one’s rights, such as selling drugs (to consenting adults). For obvious reasons, prosecutors have a harder time getting jury convictions for such “crimes” even when the defendants are guilty.
Regardless, we have moved from a criminal justice system fundamentally controlled by the citizenry to a criminal justice system fundamentally controlled by prosecutors.
What to do about it? One obvious step is to repeal mandatory sentences for non-rights-violating “crimes.” Then judges could better dampen prosecutorial zeal. I think we should consider other reforms as well, such as the idea of limiting the “trial penalty.” If prosecutors could threaten people with sentences no longer than, say, half again as long as that of their plea offers, that would dramatically increase the percentage of criminal trials going to jury.
Statists, of course, dislike giving hoi polloi a voice in criminal proceedings. They think that government agents know best and that citizens should basically stay out of the way. They also claim that trials cost more—ignoring the obvious fact that unjust prison terms cost the taxpayers insane amounts of money.
If we respect the spirit of the Fifth Amendment and want a criminal justice system tied closely to the citizenry, then we the people must demand the restoration jury trials as the standard practice rather than the rare exception in the criminal justice system.
Creative Commons Image by Andrew Bardwell