Today’s subject is dear to the hearts of far too few people: trial by jury. We start with Shane Smith of The Daily Bell website:
“It’s no secret that government absolutely loathes juries. They are an obstacle, an encumbrance to greater power, and government sidesteps the jury trial any chance it gets. But a jury trial is our right as American citizens, for now, and government has to deal with it in most instances. So government settles for the next best thing: packing the jury box with the most gullible saps our society has on offer and hoping the State’s slick lawyers and judges can cajole the jurors into delivering the desired verdict.
“The government [ideal juror] is a sap, a sheep, a serf who knows nothing of the law, or of rights, someone who would buy snow in the Arctic or sand on the Arabian Peninsula. They want malleable clay in the form of an unthinking person because they know government overreach is built upon such people.”
So it comes as little surprise that jury trials are increasingly rare, especially at the federal level. From The New York Times: “Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors and discouraged defendants from going to trial where, if convicted, they might face harsher sentences.”
In other words, prosecutors no longer consider themselves officers of the court or agents of justice. They are unrelenting zealots willing to claim scalps by grossly piling charges on defendants to get the desired plea bargain. In 1997, only 5% of federal defendants were convicted in jury trials. By 2015, that number had shrunk to an incredible 2%.
Looking at conviction rates, the prosecutors’ tactics seem to be working. Again from The Times: “Former Judge John Gleeson, which in March stepped down from the federal bench in Brooklyn to enter private practice, noted in a 2013 court opinion that 81% of federal convictions in 1980 were the product of guilty pleas; in one recent year, the figure was 97%. 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 effects ripple through the court system. Some judges’ clerks come and go without having worked a jury trial. Judge Lewis Kaplan told The Times: “It’s a loss, 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.”
JuryBox.org, an advocacy site prosecutors would just as soon disappear, notes an old saying: “There are five boxes to use in the defense of liberty: the soapbox, the mailbox, the ballot box, the jury box, and the ammunition box. Use them in that order.”
Options #1 and #2 have proved ineffective. But if you think your jurisdiction’s jails are filled with too many inmates convicted of petty offenses, vote the prosecutor out of office. If serving on a jury, remember that unjust laws and punishment are subject to the doctrine of jury nullification. Option #5 is a bit drastic, but things may be coming to that.