The Community's Right to a Jury Trial

Despite the fact that a good 95% of criminal indictments are disposed through guilty pleas, the jury trial--and the right to a jury trial--still looms large in the American imagination.  For better or for worse, our nation is obsessed with the criminal jury trial.  And it's been a focus since the founding of the country:  the right to a jury trial is codified twice in the Constitution, once in Article III and once in the 6th Amendment. 

But whose right is it, exactly?  Currently, we understand it as the defendant's right--that's certainly how the 6th Amendment seems to read.  But what if that's wrong?  What if, originally, the jury trial right was a community right , and was never intended as an individual right? What if we had spent the last century misunderstanding and misreading the Bill of Rights, contrary to the original historical meaning?  What would that mean for the individual jury trial right today?

That's the premise of my latest article, sent out to law reviews last week (and available here in draft form).  Full abstract after the jump.

Apprendi and Blakely instigated a tremendous revolution in criminal procedure. These "number 10 earthquake[s]" have caused a massive rethinking of sentencing law and policy. Until now, however, there has been only meager historical and scholarly support for the keystone of the Court's sentencing decisions: the scope, meaning and provenance of the jury trial right. In response, this Article provides the missing historical and constitutional justification for the Court's fidelity to the jury. In doing so, I will show that the original jury trial right was a community right, not an individual one as we currently envision it.

Part of the difficulty the Court has faced with its championing of jury rights is due to the Constitution's two criminal jury clauses, each seemingly addressing a different right. The first, in the Constitution proper, reads like a collective right, or a right of the people: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The second, in the Bill of Rights, reads like a right of the accused: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." Until quite recently, the Court consistently emphasized the second, defendants-right version of the jury trial right. Modern scholarship is gradually rediscovering the first, with Akhil Amar in particular emphasizing that the right has a collective dimension.

My article goes further still. I will claim that even the Sixth Amendment jury trial right, which sounds grammatically like a right of the accused, is actually a restatement of the collective right in Article III. My original historical research confirms that the jury trial right in Article III was strictly a collective right, as its grammar suggests. But the central claim of this Article is that nothing in the Sixth Amendment was meant to change this historical understanding and confer an individual right on defendants. These latter-day interpretations have shifted the meaning of the jury trial right well away from its original meaning. My reading of the historical jury right has many important implications, including, if taken to extreme, the elimination of guilty pleas, bench trials, jury trial waivers, and even peremptory challenges.

Comments

[John C]

I would be interested to know your thoughts on the administrative costs of implementing "the elimination of guilty pleas, bench trials [and] jury trial waivers." Other than a radical Stuntz-ian "decriminalization" of much of our criminal codes (which is unrealistic, of course), how would the system handle the load your argument - taken to the extreme, as you say - would place upon it?

[Laura]

Oh, the administrative costs would be immense. Almost mind-boggling to think about. Then again, Justice Harlan said the same thing about implementing Miranda in 1966....

[John C]

A little different here, no? I guess the differnce lies in what kind of "administrative costs" we are talking about . . . Justice Harlan, I think, was making a prediction of the unforseeable consequences of having criminal suspects know their rights - less immediate confessions leads to more contentious arraignments leads to the retention of more attorneys leads to more pre-trial manuevering leads to . . . needless to say, the system has been able to handle it. Justice Harlan was making what was probably an empircally unsound prediction as to the "transaction costs" of implementing a Miranda warning regime.

Here, the administrative costs are relatively clear. For every one guilty plea the new regime elminates, it adds one trial. Given jurisdiction-by-jurisdiction estimates of trial costs (which I'm sure exist), we can probably fairly accurately predict the costs to the system of a community-centric jury right. I hesitate to speculate how many zeros would accumulate quickly.

So how would you propose that this regime work in practice? What if neither party (prosecution and defense) wants a jury trial? What if the defendant wants to plead guilty? Would the litigants would be forced to adjudicate the claim before a jury? In the instance where the defendant desires to plead guilty, would there need to be some sort of kabuki-theatre in front of 12 community members to "enforce" the community's right to a jury trial? What if those 12 don't want to be there either? Essentially, you would have the judicial branch telling the public what the public wants to do, making them do it, when neither side wants to partake in the dance? And how does this square with the move in civil litigation towards alternative means of adjudication, like arbitration, special masters, etc.? Doesn't this proposal flow in the opposite direction?

(A lot of questions for one comment!)