A couple of weeks ago Albert Dzur’s article “Twelve Absent Men” in the Boston Review caught my eye. Here it is.
With a focus on criminal cases, Dzur calls for more jury trials. One of the main reasons for the decline in criminal trials is not lost on Dzur:
Massachusetts Federal District Court Judge William G. Young argues that the evaporation of the jury trial undermines core constitutional protections for criminal defendants: those who “request the jury trial guaranteed them under the United States Constitution” may face a trial tax—“savage sentences” as much as five times longer than they would have faced had they accepted a plea bargain.
Dzur advocates the types of jury reforms I have discussed, plus curtailing plea bargains:
A second kind of reform reasserts the necessity of jury trials by curtailing plea bargaining. Viewed unfavorably by public opinion and subject to much scholarly criticism, plea bargaining has nevertheless been the normal way of disposing nearly all criminal cases in the United States for more than a century. It has received increased scrutiny in recent years as both jury and bench trials have shrunk to near extinction. Critics argue that more trials and less bargaining would make punishment more deliberate and spread civic responsibility for it. While unappealing to some court professionals because it would complicate the efficient administration of justice and lessen their control over trials, limiting plea bargaining would help to reshape the court as a place of public reflection. Some reformers advocate abolishing plea bargaining in felony cases, while others press for minor measures such as greater judicial overview of the process and caps on the sentence reductions possible for given offenses.
I don’t have a problem with more jury trials in theory. But I don’t understand how it can realistically work.
How are we going to pay for all these criminal trials? I don’t know how many more judges, jurors, assistant D.A.’s and public defenders we would need in Mississippi to try all felony cases. But I’m pretty sure it’s more than the State can afford to pay and provide with courtrooms and office space.
In every Circuit Court I appear in throughout the state the judges and criminal lawyers seem to be fairly efficiently disposing of many criminal matters through plea bargains. It’s impressive.
Rather than increasing the number of jury trials I would rather focus on reforms to improve the current system, such as improved jury instructions.