Requiem for Trial by Jury: The Rise of Plea Deals
Trial by jury was a cornerstone of English common law and our Founding Fathers embraced this concept whole heartedly in building a foundation for their new nation. John Adams felt representative government and trial by jury were the heart and lungs of liberty. Thomas Jefferson believed that trial by jury was even more important to democracy than the public election of legislators. He referred to it as an anchor holding government to the principles of the Constitution. However, in courtrooms across our country jury boxes now hold chairs that do little more than collect dust. In 2023 the American Bar Association announced that almost 98% of convictions in the US are the result of guilty pleas. Once charged, defendants overwhelmingly abandon their 6th amendment right to trial by a jury of their peers regardless of their guilt or innocence. What happened to juries? The short answer is: plea bargains, also known as plea deals.
At first glance the term “plea bargain” smacks of negotiation; a sort of back and forth between prosecution and defense attorneys with each side giving and taking in the process of working out an arrangement that is acceptable for both parties. In practice, however, plea bargains are simply a tool for expediency in a criminal justice system wherein the prosecutor holds all the power. These backroom deals allow corruption to flourish and truth to be covered up. Prosecutors can selectively decide which defendants will face the full force of the law and which ones escape their charges relatively unscathed. Massive numbers of cases can be processed in a fraction of the time it would take to find resolution at trial. There are no opportunities for appeals. Plea deals work for everyone involved except the person charged. All the while the public is left out of the equation.
While the various players in the criminal justice system recognize the dark side of plea bargains, they also adamantly defend the practice as necessary to prevent the collapse of a system burdened by a flood of cases. Plea bargains grease the wheels of a system that many believe would otherwise grind to a halt. The US incarcerates more people than any other nation on earth and at a higher per capita rate than any other developed nation. Plea bargains are what allow this to happen.
While the practice of plea bargaining has existed for centuries, its widespread use in the US began in Boston, Massachusetts around 1830 and spread rapidly thereafter. To examine how defendants have come to so willingly forgo their constitutional right to trial by jury we can look to a 1972 case in Kentucky involving a bad check in the amount of $88.30. Paul Lewis Hayes claimed he was asked to cash a check for an acquaintance in exchange for a few dollars. When Hayes did so he was arrested and charged with forgery. The crime of forgery comes with a sentence of 2 to 10 years in prison. The prosecutor offered him a plea bargain. The agreement would sentence Hayes to 5 years in prison if he pleaded guilty. If Hayes turned down the deal and exercised his right to trial the prosecutor would increase the charges as a repeat offender and he would face life in prison. Hayes felt 5 years was too much for the crime he was charged. As you might guess, he turned down the plea bargain and at trial he was convicted and sentenced to life in prison for forging an $88.30 check.
Hayes appealed his case all the way to the Supreme Court. In a split decision the Justices ruled that the prosecutor’s decision to increase charges when Hayes chose to reject the plea deal was perfectly legal. Defendants who turn down plea deals face what is known as a “trial penalty”. It is a high stakes game with dire consequences regardless of a suspect’s guilt or innocence.
The Sentencing Project claims that today between 70 and 100 million Americans have criminal records. Plea bargains alone make it possible for these massive numbers and it is a selective process. If you are poor, uneducated, a person of color, or suffer from mental illness you are much more likely to have fallen victim to a plea deal and the statistics bear that out. It appears Jefferson’s “anchor” for democracy has become untethered. Our criminal justice system now focuses largely on creating criminals and justice is an afterthought.