The Plea Jury

Well, if it's February, it must be time to shamelessly promote my own writing!  To wit, I have just posted my latest version of my new paper, The Plea Jury, on ssrn:

For over thirty years, scholars, courts, defense attorneys and prosecutors have been deeply troubled by the guilty plea procedure, concerned about the sacrifice of rights and due process for cheap efficiency. Although many legal players seem to dislike the plea, few have taken on its reform.

With the Supreme Court's recent iteration of the jury's constitutional rights and powers in criminal adjudication, however, a way to meaningfully reform the guilty plea has finally arisen. I propose incorporating the community into the guilty plea process through the use of a plea jury. With a plea jury, a lay panel of citizens would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders.

My goal in this piece is to restore the community jury right to its proper place by envisioning its integration into the guilty plea, theoretically as well as procedurally. In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty plea procedure.

The piece has already provoked some interesting comments and discussion over on Doug Berman's Sentencing Law & Policy, as well as on A Public Defender, where the lead blogger, a CT public defender, is not a huge fan of my proposal.

One of the main criticisms I have gotten so far from reviewers (particularly on the blogosphere) is that my idea is not good for defendants.  My proposal, however,  is not designed to improve matters for defendants, although I think inserting a plea jury into the guilty plea process would help many defendants, especially those indigent defendants who have weak or overburdened counsel.   Instead, my goal in this paper is to advocate the rights of the community, a voice that has been almost completely shut out of the criminal adjudication process.    I would also note that this is meant to be a thought piece as much as a definitive, apply-as-written proposal--perhaps the plea jury isn't the perfect solution, but anything that gets us thinking about the guilty plea process is a good thing.

I am happy to receive constructive critiques and comments on the piece, either publicly on Faculty Lounge, or privately via email.  Thanks to all who have already given me their two cents!

Comments

[Gideon]

That's not entirely different from what I said (and what some of the conversation was about). Whether you call it advocating for the rights of the community or trampling on the rights of the defendant, in this instance, it would be two sides of the same coin, no?

I didn't treat your paper as a definitive call to arms for plea juries, but rather treated it as a thought experiment. I disagreed with your conclusions (and your assumptions), but I think it is an interesting idea nonetheless.