Criminal jury trials, as part of everyone’s Sixth Amendment right, have been declining for decades, down from approximately 20 percent of all federal cases to two percent between 1988 to 2018.
The pandemic has exacerbated the decline, making the prospect of fair and impartial justice by a “jury of your peers,” increasingly elusive, according to a forthcoming paper in the Marquette Law Review.
During the pandemic, federal jury trial rates fell as low as zero percent — meaning not a single case was moving forward in the court system, wrote the paper’s author, Brandon Marc Draper, currently Assistant County Attorney in Harris County, Texas.
“Every aspect of the criminal justice system has been harmed by the pandemic,” but the shutdown of courts across the country last year has added a worrying new hurdle to restoring the Sixth Amendment right to a jury trial, wrote Draper, who is also an assistant professor at the University of Houston Law Center.
“Any pre-COVID solution to increasing criminal jury rates will be insufficient to protecting the criminal jury right if and when the next pandemic strikes.”
The Legacy of the ‘Trial Penalty’
Generally defined as “the substantial difference between the sentence offered prior to trial versus the sentence the defendant receives after trial,” the trial penalty and the failure to enforce the Speedy Trial Act are regularly blamed by experts as the primary cause of the pre-COVID decline in criminal jury trial rates.
Studies have shown that the cost of exercising the Sixth Amendment trial right is severe.
“On average, a defendant charged with a federal crime that proceeds to trial and was convicted received an additional seven-and-a-half years of jail compared to those who plead guilty,” Draper wrote.
Moreover, the failure to enforce the 1974 Speedy Trial Act, where Congress explicitly set up time limits in which federal crimes must be charged and tried, has forced many defendants to choose between taking a plea deal or have the judge act as the jury.
Longer delays are commonplace, Draper added, since all parties are incentivized to disregard or abuse the Act. He observed that longer delays give prosecutors a greater chance to “flip a co-defendant into a cooperating witness though a negotiated plea deal” while public defense attorneys earnings are drawn out when the government is unable to proceed to trial on time.
While these pre-pandemic problems have been well documented, Draper notes that even if these troubles are eliminated, it will not solve the Sixth Amendment problems in our post-pandemic world — particularly with a seemingly insurmountable trial backlog.
The Pandemic ‘Pressure Test’
Throughout the height of the coronavirus pandemic, the criminal justice system’s ability to conduct criminal jury trials was largely hindered, preventing many of the accused from exercising their Sixth Amendment rights.
To that end, Draper also writes that the pandemic’s constraints created a stress test for our existing system, revealing the “inability” of the system to ensure a right to a criminal jury.
Several courts around America attempted to implement new procedures to continue conducting criminal jury trials, including trials that were socially distanced and in person, others that were conducted by video conference technology, or a hybrid of both methods, Draper details.
Even with these new pandemic workarounds and the best of intentions, Draper argued, the solutions didn’t always work, and many were still disenchanted by a jury trial taking plea deals instead.
Or, many of the accused continued to waive their Sixth Amendment rights, and chose the speedy trial right, “potentially causing prosecutors and defense attorneys to shrink their ethical obligations to seek justice or zealously represent their clients.”
“Greater action is needed to ensure a pandemic-proof criminal jury right,” the paper said. “Indeed, while the vaccine may be a cure for the virus, it is not a cure for the problems it caused to our criminal justice system.”
Video conferencing for jury trials has been employed to reduce the backlog of cases created by the pandemic.
The backlog is heavy. In Texas, as of May 2021, there are approximately 50,000 additional felony cases pending than there were at the start of the pandemic. Experts believe the backlog will take anywhere from three to five years to “dig out.”
Similarly, Florida experts believe their backlog is up to one million cases.
While the problem is clear, Draper writes that the solution is not. But that doesn’t mean that the solutions and efforts to address these concerns should be abandoned.
In order to ensure that defendants who want a fair criminal jury can get one, Congress should enact measures to end the trial penalty, as well as properly enforce the Speedy Trial Act, the paper said.
Most importantly, Draper added. the Constitution should be amended to create a criminal jury right that allows courts to conduct jury trials via video conference.
Draper acknowledged that still more must be done — including providing a substantial investment in video conferencing technology to snuff out technological issues, delays, and access inequality in certain counties.
“The accused, victims, and society deserve a pandemic-proof criminal jury right,” Draper concluded. “The COVID-19 pandemic has shown us how to provide one.”
Brandon Draper is an adjunct professor and the assistant director of the National Mock Trial Team for the University of Houston Law Center. Draper also teaches law students advanced trial practice skills and professionalism in lecture and court while being a former prosecutor and current Assistant County Attorney in Harris Count, Texas. The full forthcoming paper can be accessed here.
Andrea Cipriano is a TCR staff writer.