Adobe Images Two hundred and fifty years ago, a group of men gathered in Philadelphia to declare America’s independence from Great Britain. The familiar story centers on taxes — especially on tea — and the colonists’ dramatic protest in Boston Harbor. But the grievances articulated by the colonists in the Declaration of Independence went far deeper than disputes over taxation. They reflected a struggle over a fundamental feature of self-government: the right to a trial by jury.
In 1767, with the Townshend Acts, which imposed new taxes on colonial trade and prompted stricter enforcement, British authorities began prosecuting alleged smugglers. But colonial juries, drawn from the local population, frequently refused to convict. Through nullification, they resisted what they viewed as unjust laws.
Frustrated, Parliament responded in 1768 by creating tribunals. that eliminated juries altogether. In these courts, a single judge, appointed and paid by the Crown, determined guilt or innocence. The public’s role in the administration of justice was effectively removed. Matters worsened when Parliament authorized the transfer of certain criminal trials to England, requiring colonists to defend themselves before distant courts.
These events were fresh in minds of the Founders who drafted the Declaration of Independence in 1776, listing among the king’s abuses that he had made judges dependent on his will, deprived the colonists “in many cases, of the benefits of Trial by Jury,” and transported them overseas for trial. These were not peripheral complaints—they were central to the claim that the Crown had imposed “absolute Tyranny.”
The Constitution reflected the seriousness of these concerns by guaranteeing the right to trial by jury in criminal cases. The Bill of Rights reaffirmed this protection, ensuring jury trials not only in criminal cases but also in civil cases, and requiring that criminal trials occur in the state where the alleged crime was committed.
Having experienced the dangers of judge-controlled tribunals, the Founders were determined to preserve the jury as a cornerstone of American justice.
But when it comes to denying Americans the right to a jury trial, King George III could not hold a candle to modern American prosecutors. Today, approximately 95 percent of criminal cases in the United States are resolved through guilty pleas rather than trials. In so-called plea bargaining, prosecutors threaten unduly severe sentences for those defendants who dare go to trial or offer unduly lenient sentences for dangerous offenders looking to avoid responsibility. The result is the virtual elimination of criminal trials of any sort, jury or judge.
How did this transformation occur? The short answer is that the Supreme Court let it happen, caving to Richard Nixon’s “law and order” agenda.
As late as May 1968, the Supreme Court had ruled that “needlessly” encouraging guilty pleas and jury trial waivers was unconstitutional. Yet only two years later, the court retreated from that position, upholding plea-bargaining practices even when defendants faced significantly harsher penalties only if they chose to go to trial. As the court now saw it, there was nothing impermissible about encouraging “a guilty plea by opportunity or promise of leniency.” Only a year after that, the court was extolling the virtues of plea bargaining, describing it as “an essential component of the administration of justice.”
The Founders, however, viewed juries as essential. Jury trials, by publicly airing and testing the evidence of the crimes, serve the dual functions of both protecting the accused from false accusations and coercion to wrongly admit guilty and protecting the community from lenient sentencing of dangerous offenders. Modern American-style plea bargains wreak havoc on both those vital interests.
There are, however, signs the current Supreme Court is rethinking what it has wrought. In 2020, the court struck down state laws permitting non-unanimous jury verdicts in criminal cases, recognizing their historical roots in discrimination. In June, the court agreed to take up a case to reconsider laws in several states that permit smaller, six-person (rather than 12-person) juries in criminal cases.
Most notably, several justices have begun to question the modern plea-bargaining system itself. In a recent concurring opinion, Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, observed that the jury trial has largely given way to “a conveyor belt of plea bargains.” They acknowledged that “at least some responsibility for that development lies with this court” which has looked the other way, and even condoned, “coercive prosecutorial tactics designed to induce defendants to take plea deals.”
That may signal an openness to reexamining assumptions that have governed the criminal justice system for decades. The Founders regarded the jury trial as an essential feature of liberty. If the modern system has drifted from that understanding, the question now is whether it can be brought back into alignment.
If the 250th anniversary of American independence invites reflection on our foundational values, this issue deserves a place near the center.
Matt Martens is a trial lawyer with the WilmerHale law firm in Washington, D.C. He has tried some of the country’s most significant cases, both civil and criminal. He is also an award-winning author, of “Reforming Criminal Justice.“
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