Despite the frequent presence of juries in media coverage of trials, the public is absent from much of the democratic process created by the U.S. Constitution. While citizens elect officials, few participate in important daily criminal and civil justice decisions by serving on juries.
Juries decide fewer than four percent of criminal cases and fewer than one percent of civil cases. Juries don’t determine criminal defendants’ fates, because defendants plead guilty around 95-97 percent of the time.
But why would a defendant plead guilty, when a prosecutor otherwise would be required to convince a jury to convict the defendant? Almost invariably, the defendant pleads guilty because he or she will receive more time in prison if the case went to a jury trial and resulted in conviction.
Prosecutors use charge or sentence bargaining to “incentivize” defendants. Defendants are given less time in prison if they give up their jury trial rights and plead guilty. In fact, even innocent people have pled guilty to avoid a longer sentence, which will be imposed, if they insist on a jury trial and are convicted by a jury.
The plea with the better sentence may be available for only a short period of time—and only before the defendant has significant information about the prosecutor’s case against him. The plea may even require the defendant to waive seeing the prosecution’s evidence and waive the indictment by a grand jury (in places where grand juries are required).
Although this system is widely accepted today, is it constitutional?
The statistics tell a disconcerting story. Ten percent of those who have been found innocent pled guilty—many times because of the severe difference in the sentence if convicted before a jury versus if pleading guilty.
What about those who are guilty? Plea bargaining is equally troublesome in those circumstances.
Whether a defendant is guilty or innocent, the constitutional issue is whether the defendant freely chose to plead guilty and forego a jury trial. To understand this choice, we can look to history. The provision for trial by jury in our Constitution was based on the English jury in the late 18th century.
Although historically a defendant could plead guilty in England, it rarely happened. Back then, almost everyone took the jury trial. Even if the accused pled guilty, the judge imposed the same sentence for a plea and for a conviction by a jury.
In the past, the Supreme Court recognized the possible constitutional problem with significant sentence incentives for pleas over jury trials. However, later, the Court sealed the fate of the jury trial and thus criminal defendants.
In Bordenkircher v. Hayes, the prosecutor asked the defendant to take a plea offer of five years for an alleged forged check for around $90. He threatened the defendant with a new indictment subjecting him to life in prison, if he would not take the plea. The defendant refused to plead guilty, was subsequently indicted by a grand jury on a new life imprisonment charge, was convicted by a jury, and sentenced to life in prison.
The defendant argued this was unfair. His right to due process was violated when the prosecutor punished him for insisting on a jury. But the Supreme Court decided that the defendant’s constitutional rights were not infringed.
Plea bargaining was an important part of the criminal justice system.
The Court has laid aside the Constitution and defendants’ rights in favor of efficiency. However, the jury is enshrined in the Constitution, and defendants do not freely choose pleas over jury trials when facing much stiffer sentences if convicted by juries.
I have argued elsewhere for jury reform including “the plea offer” and “sentence” requirements. The basic idea is if a prosecutor offers a plea bargain and the defendant decides to go to trial, the plea offer as well as the sentence associated with the plea can be placed into evidence at trial for the jury to consider.
The jury then has multiple options. It can convict on the original charge, convict on the plea charge, or not convict. In deciding on what, if any, charge to convict, the jury can consider the sentence associated with the plea charge and the sentence associated with the original charge.
This practice of considering the sentences would be consistent with historical convention. English juries knew the sentences and often acquitted or gave partial verdicts for lesser offenses based on the sentence.
The plea bargaining system is direly in need of reform. The public should play its intended role to oversee the decisions of prosecutors and police—and be the ultimate deciders of innocence or guilt.
Suja A. Thomas is the Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law. She has authored The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (Cambridge Univ. Press 2016) and co-authored Unequal: How America’s Courts Undermine Discrimination Law with Sandra Sperino (Oxford Univ. Press 2017). She welcomes comments from readers.