The Dangerous Decline of the Jury Trial

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“The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.”

So said small- government apostle Thomas Jefferson in his First Inaugural Address in 1801.

It may be our creed, but we exercise it only in two percent of criminal cases.

The other 98 percent are disposed of by bargaining among criminal justice professionals behind closed doors.

Here’s a proposal to address that: Let’s condition federal funding in each jurisdiction on disposing of 15 per cent of its cases by jury trial.

You can get to 15 percent by raising the number of jury trials or by cutting the number of petty cases you file. In fact, why not try doing both? Next year, the requirement will be 20 percent.

Court administrators might argue this is expensive. But if we took one year off the back end of every sentence, thereby saving $53,000 per prisoner (That’s what it costs to keep one prisoner institutionalized for a year.)

After all, politicians on both the left and right—from Elizabeth Warren to Rand Paul— agree we must do something about mass incarceration anyway.

Another idea: Declare the War on Drugs over, and then use the peace dividend to pay for juries in cases that matter.

We desperately need jury trials: Their absence is one of an array of developments that has convinced the public—and especially urban minorities—that criminal justice is something that is done to it, not with it, and certainly not for it.

The situation in the local justice systems is reminiscent of the situation at NASA in the 1990s that Sidney Dekker describes in his book Safety Differently: Human Factors for a New Era. It explains both how the pressure of caseloads got us to where we are and where that pressure is taking us.

NASA had an explicit organizational philosophy in those days: “Faster, better, cheaper.” The goals were easy to accept. And it was fairly easy to devise ways to measure statistical progress toward each of them.

These two qualities would move any proposed criminal justice reform to the top of the list of, say, your local trial court administrative system. For that matter, they would move them to the top of the agenda of reform minded, “data-driven,” grant-givers and grant-getters too.

What was apparently less important to NASA dignitaries was that their three goals were often in conflict, and, as Dekker notes, it was left to the sharp-end workers to figure out the trade-offs.

They did. So, a novice worker assigned to the foam on the external fuel tanks was shown by more experienced workers how a clean-looking foam surface could be achieved faster and more cheaply by simply brushing chemicals over small defects.

This was done repeatedly, with no locally visible bad effects. (The safety experts argue that Murphy’s law is wrong: Everything that can go wrong usually doesn’t, and then we draw the wrong conclusions.)

At the sharp-end, workers internalized the outside pressures for faster and cheaper, and adjusted their concepts of workmanship and professionalism. Their answer to “Who is a good, skillful colleague?” became “The one who knows the brush-the-chemicals trick,” no matter what the elaborate formal written procedures said.

“Good work” became getting faster, cheaper, product past the inspector. Then, Challenger is launched, the foam fails, there’s an explosion…..

The point here is not that NASA was an outlying rogue agency or that its workers were sociopaths; just the opposite. The point is that this reaction is to be expected from any system under unrelenting pressure to produce, even when that pressure is self-created.

Triage, short-cuts, “work-arounds,” and “covert work rules” will proliferate.

That was true at NASA. Look at the histories of the DNA exoneration cases, and you will see that it is true in criminal justice too. The things you decide to measure affect the things you decide to do.

When the daily life of insiders becomes one of cutting corners—in crime scene trace evidence work, in the crime lab, in witness interviews, or in the search for alternative suspects—inspection by a citizen jury of outsiders at the end of the process becomes very threatening.

It isn’t that having the jury inspection itself is so expensive; that’s just a rationalization.

The fact is, it’s doing the work needed to pass the inspection that is so expensive: in time, money, and effort, all spent at a cost to the looming list of new cases that just keeps getting longer.

The more important “faster” and “cheaper” become, the more unwelcome an outsiders’ inspection for “better.”

The decline of the jury trial isn’t an accident; it is another predictable systemic “work-around.”

A prosecutor who hides exculpatory evidence is trying to “game” the inspection just like the NASA worker brushing chemicals onto the foam. But that prosecutor might also succeed in cancelling the inspection altogether if the hidden exculpatory evidence bluffs a defendant into a plea in the face of terrifying mandatory minimum sentences.

If that doesn’t work, ratchet down the information you make available, or ratchet up the threatened minimums (or both) next time.

Perversely, the grudging criminal discovery rules that are justified as ensuring a level playing-field for advocates at a subsequent jury trial end up making those jury trials disappear.

It doesn’t take too long—again as at NASA—for the inevitable “normalization of deviance” to make this seem like just the way things are.

Then, once you’ve established this year’s new “fast” and “cheap,” you get to pursue next year’s “faster” and “cheaper” from those starting points, and against a background of rising caseloads. The drift is set in motion.

Although no one wants to see the innocent convicted any more than anyone wants to see astronauts killed, the seeds of an eventual tragedy are sown.

Jefferson’s friend and antagonist, John Adams, believed that:

“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

The two Founders believed that a jury trial was a positive good, not an expensive nuisance to be avoided.

Let’s take their word for it: Make “Try the cases” not “Clear the docket list” a concrete goal and force the system to let the sunlight in by making regular inspections by citizen jurors unavoidable.

James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice. The opinions expressed here as his own. He welcomes comment from readers.

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