Cato Handbook for Policymakers

Restoring the Jury Trial

2022 • Cato Handbook for Policymakers

By Clark Neily, Jay Schweikert, and James Craven

Policymakers should

create a trial lottery system for auditing plea bargains;
provide that jurors be informed of the punishment defendants face if they are found guilty;
require prosecutors to disclose exculpatory evidence before entering into plea agreements with defendants; and
create plea integrity units to ensure defendants are pleading guilty because they are guilty, not because they were coerced by prosecutors.

The Constitution provides that the “trial of all crimes … shall be by jury,” and the Bill of Rights devotes more words to the subject of jury trials than any other. Yet jury trials are now practically extinct on American soil, having been replaced by the ad hoc and often extraordinarily coercive process that we refer to somewhat euphemistically as plea bargaining. Indeed, as Justice Anthony Kennedy observed in a 2012 opinion, “Criminal justice today is for the most part a system of pleas, not a system of trials.” But there are myriad problems with this extraconstitutional and mostly unregulated practice of plea bargaining that cry out for legislative reform.

According to the most recent data from the U.S. Sentencing Commission, 98.3 percent of criminal convictions in the federal system come from guilty pleas. As the Pew Research Center has shown, just 2 percent of federal prosecutions culminate in a constitutionally prescribed jury trial. The remainder are either dismissed (8 percent) or end with the defendants’ waiving their right to trial and pleading guilty instead (90 percent). At first blush, this may seem like a win‐win situation: taxpayers are spared the expense and inconvenience of unnecessary jury trials, and defendants receive a more lenient punishment in exchange for pleading guilty instead of contesting the charges against them. Upon closer inspection, however, it becomes evident that plea bargaining is, in fact, a deeply pathological process that severely undermines the Constitution’s commitment to transparency, due process, and justice.

The first and most glaring problem with plea bargaining is that innocent people are regularly induced to plead guilty to crimes they did not commit. For a variety of reasons—including particularly the system’s strong antipathy toward postconviction claims of innocence and numerous procedural barriers to pursuing such claims—it is not possible to state with any precision the total number of false guilty pleas. That said, it is possible to extrapolate from a number of credible sources, including the Innocence Project, which exonerates the falsely convicted using DNA testing and other similarly reliable scientific techniques. Of the more than 300 people exonerated by the Innocence Project, more than 10 percent pleaded guilty to heinous crimes that they did not commit. That figure is consistent with data from the National Registry of Exonerations, which has documented more than 3,000 exonerations since 1989—again, more than 10 percent of which flowed from false guilty pleas. Scholars estimate that somewhere between 2 and 8 percent of people who plead guilty are in fact innocent.

The reason so many people would plead guilty to crimes they did not commit quickly becomes apparent when one appreciates the extraordinary amount of coercive pressure that prosecutors can—and routinely do—bring to bear in the plea‐bargaining process. Those levers include, but are not limited to, pretrial detention, charge stacking, mandatory minimums, and the infamous “trial penalty,” which is the often‐massive differential between the sentence a defendant will receive if he pleads guilty and the sentence he will receive if he goes to trial and loses. Unfortunately, judges make no serious effort to ensure that pleas are not coerced, and multiple courts have approved the use of such palpably coercive tactics as threatening to indict (or refrain from indicting) a defendant’s family members simply to exert plea leverage.

Not surprisingly, there is a growing consensus among scholars and other experts that the plea‐bargaining process stands in desperate need of reform. And among the most intriguing proposals is to create a so‐called trial lottery that would randomly select a small percentage of cases that have been resolved through a plea bargain and send them to trial anyway to see what the result would have been. If the defendant is convicted at trial, he receives the benefit of the plea agreement; if the defendant is acquitted, he goes free and—ideally—the office or agency that brought the prosecution initiates a sentinel event review process (i.e., a comprehensive review of a major organizational error) to determine what went wrong and how to prevent it from happening again.

Another important step policymakers should take to rehabilitate criminal jury trials is to provide that jurors be told the sentence a defendant would face if convicted. At the time of America’s Founding, jurors generally understood what the consequences would be for the defendant if they voted to convict because criminal law and its associated penalties were relatively simple. But as sentencing policy has become more complex, modern jurors are generally unaware of what punishment the defendant may confront if convicted.

The Founders meant for criminal juries to serve as an important check on government abuse of power, but jurors cannot effectively perform this role if they are unable to assess the severity of the punishment the defendant will receive if convicted in comparison with the culpability of the conduct at issue. This point is thrown into particularly sharp relief by the modus operandi of our current criminal justice system, where defendants regularly plead guilty because those who go to trial and lose face sentences that are, on average, over twice as long as those imposed on defendants who forgo their right to a jury.

The emerging consensus among criminal justice scholars is that the often disproportionately severe sentences defendants face for going to trial are neither intended nor expected to be the actual punishments imposed in most cases. Instead, policymakers design these statutory sentences to increase prosecutors’ leverage in plea negotiations, maximize the number of defendants who can be induced to waive their constitutional right to a trial, and ultimately persuade defendants to accept whatever punishment a prosecutor really believes is fair.

This dynamic creates perverse incentives for prosecutors and legislators alike, prompting the former to overcharge defendants and the latter to overcriminalize behavior. Neither dynamic is good for the American people, and a system in which innocent people are regularly coerced into pleading guilty to crimes they did not commit will quickly lose its moral and political legitimacy.

Informing juries of the range of statutory sentences defendants face would substantially ameliorate the bane of coercive plea bargaining by making constitutionally prescribed jury trials relatively more attractive to defendants than they are now. Evidence suggests that informing juries about sentences makes them more likely to faithfully apply the appropriate standard of proof and ensure that the government’s case satisfies the rigorous standards that the Constitution imposes. This result would make it riskier for prosecutors to level unrealistic or redundant charges at defendants, who could opt for a jury trial and turn laws with excessive penalties into a liability for the government.

Of course, it is precisely this heightened scrutiny by jurors that is often characterized as somehow improper or unfairly prejudicial, purportedly leading them to erroneously acquit people who are factually guilty. But as noted, our current system demonstrably has a worse effect: many defendants plead guilty despite being factually innocent, often due to a perfectly rational fear of suffering a far harsher sentence if they go to trial and lose. Informed juries will make it easier for innocent defendants to resist efforts to coerce them into false guilty pleas, since prosecutors will have better incentives to bring appropriate charges carrying a fair sentence—and not threaten defendants with blatant trial penalties.

The simplest implementation of this policy would require jury instructions to include the statutory ranges for all crimes charged. The instructions would explain whether charges would run concurrently or consecutively, with a cumulative range that takes this information into account. Because some laws stipulate higher penalties for defendants with a prior criminal history, the defense, as applicable, could request that this information be excluded from the instructions because of its potentially prejudicial effect. Should the defense not object, the jury would be told the range of years the defendant faces given his or her criminal history, with the judge emphasizing that this history is not relevant to the defendant’s guilt in the current proceedings. This is just one possible approach, however, and policymakers may tailor it to fit their jurisdiction’s particular sentencing system.

Finally, given that the vast majority of criminal cases are disposed of by guilty pleas, policymakers should require absolute transparency between prosecutors and defendants during the plea‐bargaining process, most notably by requiring prosecutors to disclose all exculpatory evidence before a defendant pleads guilty. To ensure that this occurs, policymakers should establish plea integrity units to randomly audit plea agreements. These units would determine whether the plea was the result of corrupt or coercive tactics and ensure that prosecutors are disclosing necessary evidence and information so that criminal defendants can make informed decisions before waiving their constitutional right to a trial.

Our current system incentivizes prosecutors to overcharge defendants and then use the weaker charges as bargaining chips to obtain a guilty plea—even when they have evidence suggesting the defendant may not be guilty of every crime charged. The U.S. Supreme Court has long held that due process requires prosecutors to disclose all evidence material to a defendant’s guilt or innocence before trial. Nevertheless, the Supreme Court has not expressed when such evidence must be shared, and courts seem to disagree on the correct timeline for disclosure—with some courts concluding that such evidence need not be disclosed at any point during the plea‐bargaining process.

Purposeful withholding of exculpatory evidence in an effort to obtain a guilty plea undercuts the fundamental purpose of our criminal justice system: to punish the guilty and exonerate the innocent. The disclosure of exculpatory evidence before entering into a plea agreement would allow defendants to be fully apprised of the case against them and thus make informed decisions before waiving their constitutional right to a trial. As a result, innocent defendants who may otherwise have given in to prosecutorial pressure to plead guilty might instead opt to fight their charges.

Policymakers should provide for the creation of plea integrity units tasked with examining a sample of cases in which plea agreements have been reached. These units could be part of the prosecutor’s office, or better, part of an independent Office of Plea Integrity. The goal of these plea integrity units would be to evaluate plea deals to ensure that the defendant is, in fact, guilty; the government did not use unfairly coercive techniques to get the defendant to enter into the plea agreement; and the guilty plea does not represent a corrupt bargain to provide the defendant with more leniency than he deserves.

Federal courts hear approximately 80,000 criminal cases annually, so it would be unreasonable to assume that these units would have the resources to conduct a review of every single case. However, it would not be unduly burdensome to direct these units to develop a system for selecting a mix of random and specially designated cases for review. This randomized audit of cases would provide much‐needed insight into the coercive nature of our current criminal justice system, and it would provide a meaningful deterrent to prosecutors who make convictions, rather than just outcomes, their metric of success.