A Historical Perspective on Jury Rights in America

Two centuries ago, the struggle for American independence involved more than a resistance to taxes. A critical issue was the right to a trial by jury, a cornerstone of self-government. In 1767, the Townshend Acts imposed new taxes and tougher law enforcement, resulting in the prosecution of alleged smugglers. Colonial juries often refused to convict, practicing nullification against laws they viewed as unjust.

Parliament responded in 1768 by creating tribunals that excluded juries. A single Crown-appointed judge decided outcomes, removing the public’s role in justice. Additionally, trials were sometimes relocated to England, putting colonists at a disadvantage. These concerns were fresh in the minds of the Founders in 1776. The Declaration of Independence listed grievances such as loss of jury trials and removal of judges’ independence, claiming these were evidence of tyranny.

To address these issues, the Constitution and Bill of Rights guaranteed jury trials in criminal and civil cases and required trials occur in the state where the crime took place. The Founders viewed the jury as fundamental to justice. Today, however, most criminal cases resolve through plea bargaining. Defendants often face unfair sentencing threats, undermining jury trials.

This shift occurred with the Supreme Court’s blessing amidst Richard Nixon’s “law and order” agenda. In 1970, the court upheld plea-bargaining practices despite them being unconstitutional two years earlier. The court praised plea bargaining as an important part of justice administration.

The Founders saw jury trials as vital for protecting the accused from false charges and ensuring dangerous offenders aren’t leniently sentenced. Plea bargains disturb these roles. Today’s Supreme Court is reconsidering previous rulings. Notably, the court struck down laws allowing non-unanimous verdicts, recognizing their discriminatory origins.

In recent cases, some justices have questioned plea bargaining. Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, criticized coercive tactics that force plea deals. There’s interest in revisiting decades-old assumptions about plea bargaining.

The jury trial was considered essential for liberty by the Founders. If the current system has deviated from this, it may now be realigned. Reflecting on our history and foundational values, the right to jury trial remains crucial. Matt Martens, a trial lawyer with WilmerHale, has handled major cases in the U.S. and authored “Reforming Criminal Justice.”