The right of trial by jury should extend even to defendants charged with criminal offenses that are considered “petty,” in order to restore the legitimacy of the U.S. justice system and reduce mass incarceration, argues a Washington and Lee University law professor.
“Expansion of the jury trial right would constitute a meaningful structural reform in democratizing criminal justice, at a time when such change is needed to establish the popular legitimacy of the criminal justice system,” writes J.D. King in a paper published in the University of Pennsylvania Journal of Constitutional Law.
King joins other justice critics in noting that jury trials are becoming increasingly rare in the U.S. justice system.
Juries decided 8.2 percent of federal criminal cases in 1962, but just over 2 percent in 2015, effectively turning trials into what former Supreme Court Justice Anthony Kennedy called “a system of pleas, not a system of trials.”
King argued that the “disappearance of criminal jury trials has coincided with a precipitous increase in the use of incarceration as a tool to punish and control populations that are the subjects of the criminal justice system.”
Expanding jury trials to include lower offenses would have to be carefully calibrated according with 1989 Supreme Court ruling in Blanton v. No. Las Vegas that the constitutional right to trial by jury does not extend to “petty offenses.”
“A meaningful embrace of trial by jury should be seen as a political change as much as an expansion of individual legal rights,” King wrote.
King noted that in Lewis v. the United States, the Court in 1966 limited jury trials in lower offenses.
As long as no individual charge carried a possible punishment of six months or more, asserted the Court, the defendant was not charged with a “serious offense” and therefore was not permitted a jury trial.
King, however, argued that it is in the interests of U.S. democracy to expand the scope of jury trials.
“Strengthening the role of the jury in the American criminal justice system is important both symbolically and practically,” he wrote in his paper.
“Calls to reform and transform the way American police and courts address allegations of wrongdoing make this an opportune time to re-examine the system from top to bottom.
“An embrace of the criminal trial jury is at once a progressive step forward and a return to the principles of the past.”
King said the reduction in jury trials and the growth of plea bargaining was in part responsible for mass incarceration, and for the fact that the UJ.S. had among the highest per capita rates of imprison in the world.
In 2011, around 97 percent of prosecuted offenders elected to take guilty pleas, according to the Bureau of Justice Statistics.
“Even if jury trials are rarely used in states where the right attaches to misdemeanors, the very option of a defendant to exercise that right changes the calculus of pre-trial negotiations and can lead to better and fairer outcomes,” King wrote.
King called for “eliminating the petty offense exception to the jury trial right,” adding it could be achieved on a case-by-case basis, through an act of the legislature or by “constitutional reinterpretation.”
He acknowledged that critics would argue it would make the system more cumbersome and time-consuming.
But, he asserted, it would result in a criminal adjudication system that is more just,
more democratic, and more faithful to the ideals of those who drafted the
constitutional right to trial by jury.”
John D. King is James P. Morefield Professor of Law, Washington and Lee University School of Law.
The full study can be downloaded here.
James Van Bramer is Associate Editor of The Crime Report