
Trial by Jury, a Hallowed American Right, Is Vanishing - greghendershott
http://www.nytimes.com/2016/08/08/nyregion/jury-trials-vanish-and-justice-is-served-behind-closed-doors.html
======
gumby
America is unusual in having "charge stacking" (if you break in and steal
something you can be convicted of both the break in and the theft, as opposed
to simply the more serious of the two) and plea bargains (which are considered
a human rights violation in many countries). The combination really tilts the
power in favor of the prosecutor and, as the article points out, drives
defendants towards conviction under the very low indictment standard of
evidence rather than the rigorous one of courtroom proof.

~~~
the_mitsuhiko
Whenever I hear about the American justice system I wonder how it can live in
the presence of the 8th amendment. Both life sentences (or multi life
sentences) and death penalties are seen as cruel and not permitted in most of
Europe.

~~~
SmellTheGlove
It's because Europe doesn't interpret the 8th Amendment, the US Supreme Court
does. And here, there's a really high bar for cruel and unusual. To the point
where as long as it takes place in a prison, it seems to be okay. I don't like
or agree with it, but the legal meaning of the 8th Amendment is not obvious
from its text. That might be the first sign that we're getting it wrong,
actually.

~~~
rayiner
The _meaning_ is pretty obvious considering that the folks who wrote the damn
thing had capital punishment for numerous crimes and still practiced branding,
public whipping, etc. as punishments. We just don't like the implications of
the real meaning and look for ways around it.

~~~
SmellTheGlove
The text reads

>Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.

What you're referring to is the original meaning. There are other principles
of interpretation in the US judiciary. The Supreme Court has shifted from the
original meaning, given that there are some restrictions on capital punishment
(mostly based on age and mental handicap). Most of that development has been
from the mid-80's to today.

However, to further address your point, I don't think the meaning is obvious
from the text. In particular, the word "cruel" in relationship to "punishment"
is not obvious to a layman.

~~~
rayiner
If you're reading Darwin's work, you don't look at a 20th century dictionary
to figure out what he meant. The question is, what would the phrase "cruel and
unusual punishment" have meant to people when those words were written?

~~~
lmm
Do you also take the position that the second amendment applies only to arms
that were available at the time?

A constitution is not a codification of objective facts but of principles and
processes for resolving disputes between people. To my mind it seems more
likely that "cruel and unusual punishment" means "any punishment cruel and
unusual according to community standards" than "this specific list of
punishments".

~~~
rayiner
> Do you also take the position that the second amendment applies only to arms
> that were available at the time?

No, but I also don't think a textualist interpretation of the 8th amendment
proscribes only a fixed set of punishments that existed in 1789. Words like
"arms" and "punishments" denote categories-- _kinds_ of things grouped by
shared characteristics. Someone in 1789 would be amazed by the technology of a
modern shotgun, but would perceive it shared all the characteristics of what
they thought of as "arms."

Likewise, hydraulic presses did not exist in 1789, but someone from the time
would have recognized putting a convict's appendages in such a machine as
sharing the characteristics of what they thought of as "cruel and unusual
punishment."

But the death penalty did exist in 1789, and it wasn't considered a cruel and
unusual punishment. So you're not just talking about fitting new things into
existing definitions, but _changing the definitions themselves_ to include
things that were previously excluded.

~~~
dragonwriter
The ordinary definition of "unusual" refers to frequency in the current
environment; there is nothing inconsistent with textualism to understanding
that the use of that word in the 8th Amendment _very much_ meant exactly that
the frequency of practice of particular punishments in some context (whether
global, or among "civilized nations", or whatever) would be relevant in
determining whether or not it was "unusual".

Its not a changing definition when the ordinary definition of a word refers to
circumstances which are subject to change.

~~~
tedunangst
This leads to a strange outcome where the government needs to execute X people
per year to ensure it retains the right to execute people in the future.

~~~
dragonwriter
Not necessarily. If something is widely accepted, both domestically and
globally, as the standard punishment for a particular crime that is itself
infrequently encountered, than that punishment for that crime is not unusual,
even if the crime itself is unusual.

~~~
harryh
So you're saying that the laws under which Americans are governed shouldn't be
up to Americans but should be, at least for some things, up to people who live
in other countries?

~~~
dragonwriter
> So you're saying that the laws under which Americans are governed shouldn't
> be up to Americans but should be, at least for some things, up to people who
> live in other countries?

No, I'm not making any normative statement about what laws _should_ be. I'm
pointing out a fairly direct reading of the plain language actually adopted in
the 8th Amendment. Which, in any case, was drafted and ratified by Americans,
and so, whatever interpretation of it is correct, is not an example of the law
under which Americans are governed being up to anyone but Americans.

------
acjacobson
The potential for coercion in plea bargains is so high that I think it draws
into question the practice as being in any way just. I've heard about drug
cases where prosecutors offered 2 year sentencing deals vs. 60 year threats if
the case goes to trial. What rational person would ever take that risk?

~~~
danieltillett
>What rational person would ever take that risk?

A rich person who can afford to hire good lawyers. If the DA is offering 2
years for a case that could go 60 then the case is not strong.

The one area I would fight even if not rich is if I was accused of a sexual
crime. In the USA this is a life sentence either way. The choice is between
spending your life in jail if found guilty or living under a bridge if you
plea.

~~~
Unbeliever69
The VAST VAST majority of sexual related crimes are NOT taken to jury because
of the stigma associated with those types of crimes. You will most likely NOT
get a fair trial in a sexual related case. In a "hand on / aggravated" offense
I would agree with you. You have nothing to lose. But in all other cases
better to take the deal.

~~~
slededit
You could request a bench trial if you think the public at large would be
biased. Unfortunately in the US this requires consent of the prosecutor. The
Ghomeshi trial in Canada is an example of using a bench trial in this
circumstance.

------
jimrandomh
Judges should have the right to look at any plea deal they suspect may be
questionable, and bring it to trial with the plea deal overriding only the
sentencing portion but not the fact-determining portion of the trial. I
suspect that any judge who did that would find factually innocent defendants
and uncover major abuses of power.

Is there anything stopping a judge (other than time/resource availability)
from doing this unilaterally?

~~~
superuser2
>other than time/resource availability

Time and resource availability is the whole reason plea bargains happen to
begin with.

Even if you hire more judges and build more courtrooms, going to trial may not
help unless defendants get good lawyers who can spend a lot of time on their
cases. These are not hallmarks of public defender offices in states with
budget woes (i.e. almost all of them).

------
matt_wulfeck
A jury is one of those things that it's the best you have. If you can't
perform and function with the juries you select, then there's bigger problems
brewing in your community.

I see a considerable amount of apathy towards serving in a jury. Why is it
seen as such an inconvenience? I can understand if it causes financial
problems, but I've seen jury dodging at all levels.

When it comes down to it, if you were accused of a crime wouldn't you want
people who cared on the jury? If so you _must_ serve on the jury and must do
it dutifully.

~~~
uptown
> I see a considerable amount of apathy towards serving in a jury. Why is it
> seen as such an inconvenience?

Because it's very disruptive to the schedules and finances of those affected
with limited assurances of how long those disruptions may last. If you're self
employed, should you be expected to forego an income for days, weeks or months
to serve on a jury? If you're responsible for children, should you then be
expected to find and pay for safe, reliable, ad-hoc childcare for an
undetermined period of time? Lst week a friend drove hours to jury duty only
to be told once there that his service wasn't needed - nobody's was that day.
He's an employee with a salary so he wasn't impacted financially, but
something like this could have a very real impact on someone living paycheck
to paycheck or someone who is only paid when they work.

I have great appreciation for the legal system and the trial by jury process -
I've been called twice, but never selected to sit on a jury. But I believe
that the system needs to address the impact that serving on a jury has on the
lives of those tasked with serving.

~~~
pseingatl
Your friend's jury service wasn't needed precisely because of the issue
mentioned in the Times article--the cases plead out. That doesn't stop the
system from summoning jurors. If trials have declined by 90% or more, so
should juror summons. That hasn't been the case.

------
JNaz
I can see how the average reader would read the headline and article and come
to the conclusion that this is evidence of another flaw in the justice system.
One problem, however, is the emphasis the article places on federal courts.
Federal criminal charges are, by their nature, rare. Big drug investigations,
terrorism cases, human trafficking, etc. If the feds are on it, it's likely a
more elaborate case requiring many more law enforcement resources, more
evidence gathered, multiple defendants, etc. It's no surprise these cases
infrequently go to trial, they require longer to investigate and prepare, they
are more infrequent, and there's so much evidence and the odds are so against
the defendants that most defense lawyers advise their clients to plea out. The
federal bench, therefore, is a very different beast from state courts where
you see the majority of criminal cases tried.

~~~
nerdponx
Fair, but it begs the question as to whether State level trials have increased
proportionallly

~~~
jackfoxy
I cringe every time I see _begs the question_ in its modern usage. Please
don't take this as a personal attack. Just sayin'.

~~~
nerdponx
I feel your pain, but I also don't know better way to express what I just
expressed

~~~
abduhl
"Raises the question"

~~~
Karunamon
"begs" as in "begs an answer to", which is the common usage. The formal logic
usage of that term always seemed bizarre to me.

~~~
abduhl
I am aware of the common usage. The correct phrase is "raises the question"
when used in the common usage way.

If you want to use begs as in "begs an answer to" then use "begs an answer
to".

~~~
aninhumer
Or, if you want to say "assuming the conclusion" say "assuming the
conclusion", rather than demanding that the nonsensical common usage of "begs
the question" stand aside for your preferred nonsensical usage, based some
dubious notion of "correctness".

------
kiba
I can't say I am a big believer in the whole concept of juries, but that is a
minor thing compared to other facets of a terribly flawed system such as the
use of forsenic pseudoscience, eyewitness testimonies(which are unreliable),
and more.

~~~
DINKDINK
>I can't say I am a big believer in the whole concept of juries

Care to elaborate on your objections? Juries exist so that it limits the
ability of the State / prosecutors or defense teams from lobbying or coercing
'professional jurors'. You do not want the people who are determining if a
citizen broke a law beholden / under the thumb of the state. I say this even
as someone who had a jury rule against myself in a civil case that both sides
(defense and plaintiff) thought that a judge would rule in my favor.

"Oh geez you've not been chosen to sit on a jury recently, your paycheck is
going to be a bit short this month. Maybe if you agreed more with the
prosecutors..."

~~~
kiba
I question the ability of average people to evaluate arguments and think
critically.

~~~
JoeAltmaier
The jury isn't there to interpret the law - plenty of people in the room doing
that already. Juries are there to inject mercy. That's why they must be a
'jury of peers' \- so they understand _why_ and can intervene with mercy if
necessary.

~~~
twblalock
Juries are instructed to determine the facts of the case beyond a reasonable
doubt, and thereby determine the verdict. Mercy is not part of jury
instructions. A jury would be a pretty blunt instrument in the delivery of
mercy, because they don't control sentencing, but only the verdict. All the
jury can say is "guilty" or "not guilty" \-- not something like "guilty, but
give the guy a merciful sentence because of mitigating factors."

~~~
JoeAltmaier
Thomas Jefferson said "I consider Trial by Jury as the only anchor yet
imagined by man, by which a government can be held to the principles of its
constitution".

Juries are allowed to vote "Guilty" or "Not Guilty" regardless of whether they
think the accused broke the law. They cannot be punished by the Court. This is
all expressly designed to allow Juries to correct inevitable tragedies brought
about by too-literal (or too-political) interpretation of the law. I.e.,
mercy.

~~~
twblalock
I suspect you are referring to jury nullification, which, contrary to
proponents' beliefs, was never broadly accepted, nor designed intentionally as
a feature of juries. It has always been contentious. It was certainly not the
original purpose of juries. Furthermore, juries were punished very harshly for
it in the past.

------
mooreds
I have served on a jury and it is a powerful experience. It also made me want
to stay far far away from any trouble with the law ("the wheels of justice
grind slow, but they grind exceedingly fine").

That said, the judges in this article come across as juvenile and thoughtless,
being concerned about how boring work is without trials. How about the poor
defendant who takes the plea deal even if they feel they are innocent, just
because the stakes are too high? We hear a one mention of such a case, but the
rest of the focus is on the poor judges and clerks who are bored or not paid
enough ("my kids didn't go to camp"!).

~~~
jonas21
Huh? The judges quoted in the article seem to be concerned about the impact on
the fairness of the justice system.

\---

> “It’s a loss,” Judge Kaplan said, “because when one thinks of the American
> system of justice, one thinks of justice being administered by juries of our
> peers. And to the extent that there’s a decline in criminal jury trials,
> that is happening less frequently.”

\---

> “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of
> the Manhattan federal bench. “A trial is the one place where the system
> really gets tested. Everything else is done behind closed doors.”

\---

> Judge Gleeson wrote that because most pleas are negotiated before a
> prosecutor prepares a case for trial, the “thin presentation” of evidence
> needed for indictment “is hardly ever subjected to closer scrutiny by
> prosecutors, defense counsel, judges or juries.” “The entire system loses an
> edge,” he added, “and I have no doubt that the quality of justice in our
> courthouses has suffered as a result.”

\---

The "my kids didn't go to camp" quote is from a stenographer and was probably
chosen by the reporter just to add another angle to the story.

~~~
ekiru
The first quote you've referenced doesn't make mention of the fairness of the
justice system.

So, there were two quoted judges bemoaning its effects on the fairness of the
justice system, two talking about how their jobs are boring without trials
(the quotes included below), and four that do not clearly talk about either of
those.

\---

> “We’d love to have more trials; most of us enjoy trials,” said Judge Alvin
> K. Hellerstein, who joined the bench in 1998.

\---

> In April, when Judge Shira A. Scheindlin resigned from the bench after more
> than two decades, she said the decrease in trials was one consideration for
> her departure. “Trials are way, way down,” she said. “The building’s quite
> dead.”

------
massysett
This was an odd article that kept saying trial "by jury" is a rare thing, and
then made statements about trials generally being rare. It made me wonder how
many bench trials occur.

~~~
jessaustin
You seem to have missed the point. The problem is not too many bench trials;
after all defendants may usually choose to have such a trial if they wish. The
problem is the vast majority of people in prison because they were intimidated
into a plea, not because a jury of their peers convicted them.

~~~
massysett
I did not miss the point. The article repeatedly noted that trials subject the
evidence to more scrutiny than plea deals. A bench trial would have the same
effect as a jury trial here. The article asserts that trials are valuable. OK.
However, throughout it subtly shifts and says there are few trials _by jury_
and asserts this is a big problem.

------
staticautomatic
As a jury consultant (AMA) I take issue with some things in this article, the
most important of which are:

1\. It is generally accepted as true that the number of trials per year in the
U.S. is shrinking (both criminal and civil). However, the data are spotty at
best. Most of the data come from the National Center for State Courts, and
their data are admittedly incomplete-- to the tune of no data on a number of
states at all. Nor are any of the data particularly recent. My crunching of
their data puts the decline at a mere ~1.8% per year, although it may well
have accelerated since their last report. How much is unknown.

2\. The focus on judges lamenting the decline of trials is on one hand
commendable and on the other disingenuous. The fact of the matter is that the
vast majority of judges across the country do not like trying cases and put
tremendous amounts of pressure on the parties to settle. These tactics range
from straightforward admonishments to forcing the parties into endless
mediation meetings and mandatory settlement conferences.

I am sensitive to the "piling on" of charges in criminal cases, which strikes
me as a patently unfair means of getting multiple bites at the apple. For
example, I helped defend a case involving a tragic killing where we succeeded
in dodging a first degree murder conviction only to find that during
sentencing, the defendant got an extra 20 years simply because the murder was
carried out using a gun.

------
unabridged
I can see them going the way of the grand jury (which has effectively been
forgotten or turned in to rubber stamp so much that it doesn't even warrant a
mention in this article). The grand jury was the biggest check on
prosecutorial power, it prevented the state from racking up insane charges to
force a plea deal.

------
jwatte
Justice in America is available to anyone who can afford it.

------
tn13
Most of these problems are created by the attitude of American public to show
deep hatred for any group that is convicted of anything. We as Americans are
not doing a good job of standing up for the rights of people who we dont like.

The law enforcement always use the words like "we took this horrific sex
offender off the street" and people generally cheer up such talk. In reality
the guy was merely caught peeing in some bush.

We need to stand up for the rights of drug dealers, sex offenders, suspected
terrorists, victims of civil forfeiture and every other criminal because that
is the right thing to do. If we start supporting "vigilante" attitude of law
enforcement officials sooner or later they are going to come for you and me
and no one will help us then.

Currently I see ACLU doing a good job of this at the ground level and Cato
Institute doing a fine job at much higher level. But they are far too small.
We need to build much bigger organizations that would do this at a larger
scale.

Actually we dont have to pursue all cases. Figure out the most tyrannical
cities and target their prosecutors heavily. Once you shame few of them
publicly and humiliate them everyone else learns the lesson.

------
onetwotree
Plea bargains are pure coercion. The ability of a prosecutor to threaten you
with almost arbitrarily severe punishment means that a plea bargain is a much
better option than rolling the dice with a jury trial. Whether or not you
committed the crime is irrelevant. You are looking at say 5 years with a plea
bargain vs. either life or nothing without one, 10 years is simply the
rational choice. Once you've accepted the plea bargain, by the way, you can't
challenge the sentence if new evidence comes up.

What's perhaps more appalling is confessions made to police and prosecutors
without an attorney present. The police and prosecutors can lie about the
potential sentence, even threatening the suspect's life (we'll go death
penalty!), drawing out a confession, and then be under no obligation to uphold
their end of the "bargain".

The bottom line is that 95% of people in our prisons did not have a trial
before a jury of their peers. Some of these people are very likely innocent,
but because of the nature of plea bargains, they cannot challenge their
sentences.

------
josh_fyi
In high-school civics class we are taught that trial by jury is part of the
American system. Yes, there is a legal right trial by jury and occasional
actual trials by jury. So what? The Soviet constitution guaranteed freedom of
religion, and indeed there were a very few churches and synagogues running
during the Communist period.

------
fauigerzigerk
And yet, every other day, we read about jury trials in complex patent or
copyright cases. The vague analogies they use to explain technical stuff to
the jurors sound like TV programs explaining theoretical physics to 8 year
olds. Jury trials can be a threat to the rule of law.

