Crime and Punishment
Bring Back the 12 Angry Men

The New York Times has a sobering report on the steep decline in criminal jury trials—yet another democratic institution that is under strain thanks to a mix of overweening bureaucracy, elite failure, and popular neglect:

The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court. The pace remains slow this year.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher. […]

The hallowed jury trial is a right enshrined in the Constitution and immortalized in American culture. But these days, said Daniel C. Richman, a professor at Columbia Law School, “‘12 Angry Men’ is more a cultural concept than a regular happening.”

The root of the problem has to do with the plea bargaining system. It is in the interest of the vast majority of defendants to cut a deal with prosecutors rather than spend time and money on a trial that could end up landing them much harsher sentences. This might make our criminal justice system more “efficient”—trials are expensive—but it also exacerbates the problem of mass incarceration and corrodes one of the historical underpinnings of American self-rule.
The good news is that there are clever policy fixes that can help address the problem. The first, which we’ve linked to before, comes from University of Tennessee law professor Glenn Reynolds’s 2013 Columbia Law Review article, “Ham Sandwich Nation: Due Process When Everything is a Crime.” Reynolds suggests cutting back on plea bargains, either by banning them altogether, or, more realistically, requiring that plea offers be subject to greater oversight from judges and juries:
The “nuclear option” of prosecutorial accountability would involve banning plea bargains. An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. It would also drastically reduce the number of criminal convictions achieved by our justice system. But given that America is a world leader in incarceration, it is fair to suggest that this might be not a bug, but a feature. Our criminal justice system, as presently practiced, is basically a plea bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.

A less dramatic option might be to require that the prosecution’s plea offers be presented to a jury or judge after a conviction, before sentencing. Judges or jurors might then wonder why they are being asked to sentence a defendant to twenty years without parole when the prosecution was willing to settle for five. Fifteen years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.

Another route for reform involves pre-trial bail practices. A new paper from researchers at Columbia University and the Maryland Public Defender’s Office (“The Heavy Costs of High Bail: Evidence from Judge Randomization”) finds that defendants who are required to put up bail are substantially more likely to be convicted, in part because those who cannot afford to post bail face strong pressures to accept a plea bargain, rather than waiting in jail (possibly for years) for their trial date:

Using a large sample of criminal cases in Philadelphia and Pittsburgh, we analyze the consequences of the money bail system by exploiting the variation in bail-setting tendencies among randomly assigned bail judges. Our estimates suggest that the assignment of money bail causes a 12% rise in the likelihood of conviction, and a 6–9% rise in recidivism. […]

Our data do not permit complete analysis of whether convictions result from plea bargains or trials. However, we have strong results when focusing on cases in which we can explicitly observe plea behavior, and cases proceeding to trial appear in our sample only rarely. We believe our estimates are primarily driven by defendant plea behavior.

Of course, bail will always need to be issued for some defendants. But one of the implications of the paper is that cutting back on pre-trial money bail, and experimenting more aggressively with alternative approaches—like ankle-bracelets or probational monitoring—could help curb the rise in plea bargaining, push more cases into the sunlight of the courtroom, and ultimately help reinvigorate a key democratic institution: the jury trial.
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