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March 10, 2008


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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?


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!)

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