The November 2016 edition of the New York Review of Books featured a disturbing article by U.S. District Judge Jed S. Rakoff on the disappearance of one of our most fundamental rights – trial by jury. His Honor lists many factors that are to blame for Americans’ increasing inability to have their day in court, including rising litigation costs and mandatory arbitration clauses. However he omits discussing the outsized role that American prosecutors have played in severely limiting most American’s right to a jury trial in criminal cases.
The authors of both the U.S. and Arizona constitutions considered the right to a jury trial so sacrosanct that its existence is guaranteed in multiple places. Article II Section 23 of the Arizona Constitution states that “[t]he right of trial by jury shall remain inviolate.” Article III of the U.S. Constitution, as well as the 6th and 7th Amendments to the Constitution also guarantee the right to a jury trial in most civil and criminal cases. But as Judge Rakoff makes clear, this right – which was so foundational to our national self-image that the Declaration of Independence lists King George III’s deprivation of it as one of the British offenses that justified revolution – has been steadily eroding.
The slow death of trial by jury in criminal cases is particularly worrisome. Judge Rakoff mentions that vastly increased mandatory minimum sentences in criminal cases have caused almost every criminal defendant to plead guilty rather than run the risk of serving years, or even decades, in prison (95% of the people charged in state criminal cases plead guilty and forgo a trial). His Honor acknowledges that this has exacerbated the development and institutionalization of mass incarceration nation-wide, which the Judge himself notes “has rightly become a source of shame for our country.”
But Judge Rakoff’s essay, while well-meaning and thoughtful, does not go far enough in ascribing agency to the problems he identifies, particularly within the criminal realm. What His Honor does not mention is that deciding which cases plead out and which go to trial does not fall to the judges who preside over them, or even with the legislators who write state criminal codes. In Arizona as in most states, determining a defendant’s charges, whether to offer them a plea agreement, and what kind of sentence to offer as an enticement to forgo the right to a jury trial rests entirely with the prosecutor. It was elected prosecutors across the nation who lobbied for the passage of mandatory minimum sentencing laws, and who use them daily to frighten defendants into taking plea agreements instead of insisting upon their rights to a trial. A real-life example best illustrates this.
When I was a public defender, I was appointed to represent a client whom I will call Dan. Dan was accused of breaking into a self-storage facility and stealing a stranger’s belongings: a gun, camera equipment, ammunition, a painting, and some electronics. All told the prosecutor accused Dan of stealing 24 items, all on the same day and at the same time. The prosecutor charged Dan with violating Arizona Revised Statue 13-1802(A)(1), which reads, “A person commits theft if, without lawful authority, the person knowingly controls property of another with the intent to deprive the other person of such property.” This crime is punishable by anything between probation and 7.5 years in prison, depending on prior offenses and other circumstances. But here’s the rub. The prosecutor charged Dan with one count of theft for each item he allegedly stole. Dan wasn’t facing a maximum of 2.5 years in prison (the top sentence for that crime for people, like Dan, who have no prior convictions). If he went to trial and lost Dan was facing 2.5 x 24 years – 60 years in prison for breaking into one storage unit, one time.
Imagine facing that choice. Sure, Dan was technically “innocent until proven guilty beyond a reasonable doubt” like all accused Americans, and sure he had a “right” to a jury trial, but how hollow does that presumption ring and that right become when standing by them means gambling with your life and freedom for committing one act of theft?
This is the true scope of the power of the American prosecutor in the age of mandatory minimum sentencing and discretionary plea agreements. They are the real arbiters of some of our most basic rights and freedoms, and every day in courthouses across the land they decide how meaningful the “right” to a trial really is.
– Joel Feinman