How the Drug War Disappeared the Jury Trial

Only a tiny percentage of those in American prisons ever got a trial.

Brad Schlesinger · · 109 comments

The criminal jury trial is a vital check against prosecutorial excesses, police misconduct, and arbitrary state power. But over the last three decades, criminal justice policy has transferred enormous amounts of power to prosecutors and away from juries and judges. Judges once had wide discretion in weighing the facts and circumstances of each case prior to sentencing. Mandatory sentencing laws give control of sentencing proceedings to prosecutors instead, leading one federal judge to describe the process of sentencing someone to years in prison as having “all the solemnity of a driver’s license renewal and [taking] a small fraction of the time.”

For example, when United States Army veteran Ronald Thompson fired two warning shots into the ground, he intended to scare off his friend’s grandson, who was attempting to enter her home after she denied him entry. He never imagined his actions would leave him facing decades in prison.

He was charged “with four counts of aggravated assault with a firearm” under Florida’s 10-20-Life mandatory minimum gun law. Prosecutors used the minimum twenty years in prison he faced to try to avoid a trial by asking him to accept three years in prison. While the deal remained on the table throughout the trial, he was ultimately convicted and sentenced to twenty years in prison.

Ronald Thompson’s case, and so many others, reveals that prosecutors don’t think that twenty-year sentences for shooting into the ground constitute justice. Why else would the plea bargain stay on the table.

The case is an example of the trial penalty in action. Utilized by prosecutors to scare accused citizens into pleading guilty, the trial penalty threatens severe sentencing outcomes if found guilty at trial compared to the plea. And the the last thirty plus years have shown that it works.

Prior to 1980, the percentage of cases resolved by guilty pleas was anything but consistent. But since then the trend has risen sharply from seventy-seven percent to, according to a recent Supreme Court case opinion, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”

By passing laws with fixed-minimum sentences for almost all crimes, legislatures, beginning largely in the 1980’s, removed discretion over offender sentencing from judges and handed prosecutors the power to determine which sentence a defendant will receive.Judges have no power to override the mandatory prison terms these laws carry, regardless of the individual circumstances of each case. This is especially troubling because of the overly punitive penalties these laws carry. Even worse, when a case does goes to trial, the jury doesn’t even know how much time a defendant faces.

The prosecutor alone chooses whether to charge the accused, which charges to file, whether to drop charges, and whether or not a plea on lesser charges will be offered, outside of any judicial oversight. These unilateral discretionary decisions “often predetermine the outcome of a case since the sentencing judge has little, if any, discretion in determining the length, nature, and severity of the sentence.” This results in radically different sentencing outcomes between the sentence a defendant receives who loses at trial compared to one who pleads guilty.

These enormously different outcomes effectively coerce criminal defendants into pleading guilty. Mandatory minimum sentencing laws give prosecutors the leverage and superior bargaining position needed to coax accused citizens, many of whom are completely innocent, into surrendering a fundamental right for a perceived benefit – a significantly lesser sentence for forgoing a jury trial and pleading guilty.

Well before the Declaration of Independence and the Constitution were even an idea, the jury trial was held as an inherent right – representing a great protection against government oppression and tyranny. And in the 1968 case of Duncan v. Louisiana, the Supreme Court affirmed and made clear that the Sixth Amendment right to a jury trial is absolutely fundamental to the bedrock principles of liberty and justice, stating that the jury is “an inestimable safeguard against the corrupt or overzealous prosecutor . . . .”

So what does it say about the current state of American criminal justice where those who exercise this fundamental right are actively punished for doing so, while others are coerced from exercising it altogether?

With an out-of-control prison population and burgeoning criminal codes full of laws that punish a host of non-violent consensual behavior, it’s far past time to end the one-size-fits-all mandatory minimum sentencing laws the 1980’s drug war fervor brought us. Doing so will allow the role of the criminal jury trial to at least be restored to a modicum of its intended status – a check on the largely unconstrained and arbitrary police power of the state. A truly free society requires it. As 19th century American intellectual Lysander Spooner so aptly wrote back in 1852, “if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.”​