The Vanishing Jury Trial

Much has been written about the vanishing jury trial in civil cases, but now there is a concern about what the effect of the vanishing jury trial means for the criminal justice system.

William T. Pizzi has posted The Effects of the ‘Vanishing Trial’ on Our Incarceration Rate on SSRN.

Here is the abstract:

This article focuses on the relationship between two troubling features of the American criminal justice system over the last forty years: the steep rise in our incarceration rate and the sharp decline in the number of criminal trials. The article contends that the lack of a strong trial system for routine cases pushes the incarceration rate higher.

To provide perspective on our problems, the article looks at the criminal trial systems in Canada and England and shows how the availability of a nonjury trial model for misdemeanors and most felonies encourages prosecutors to keep charges low by offering advantages to both prosecutors and defendants if they opt for the nonjury trial model. There is thus not the need for the extreme pressures one sees exerted on defendants in the United States to force them to plead guilty.

This article argues that it was a mistake for the Supreme Court to insist that trials for misdemeanors and most felonies must be jury trials. The result is a worse world for defendants as plea bargaining has come to dominate so completely that trials no longer serve their function as a check on the quality and quantity of cases being filed.

The article concludes that we will struggle to lower our incarceration rate significantly until we face up to the problems inherent in identifying fair trials with jury trials. It is a mistake other common law countries have not made and they are better for it.

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