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Two important debates about reforming the criminal justice system have been intensifying lately. Attorney General John Ashcroft issued a directive limiting the discretion of federal prosecutors to enter into plea bargains with criminal defendants. Defense lawyers immediately criticized the measure as burdening their clients; individual prosecutors complained that it is centralizing prosecutorial power. Meanwhile, the Judicial Conference, the policy-making body of the federal judiciary, issued a resolution favoring repeal of congressional legislation that seeks greater uniformity in criminal cases by limiting the discretion of trial judges at sentencing. The voices of jurors are missing from these debates. By failing to take them into account, we risk undermining the interests of ordinary Americans in the operation of the criminal justice system and drifting away from our founding principles. The framers of the Constitution understood juries as the people’s representatives in the administration of justice. Juries, protected in Article III of the original Constitution prior to the Bill of Rights, represent an important form of political participation and function as a check on governmental power. Alexander Hamilton in The Federalist identified the need to protect juries as the single point of agreement among the diverse delegates to the constitutional convention, who agreed that juries were the “very palladium of free government.” Even the anti-federalist author of the 1788 Essays by a Farmer identified juries as “the democratic branch of the judiciary power.” In overseeing criminal cases, jurors learn about and shape the operations of their government and prevent it from acting arbitrarily or unfairly. Yet the attorney general’s directive on plea bargaining might be good news for juries, since plea bargaining has eliminated the role of the jury in monitoring the disposition of many criminal cases. Plea bargaining relatively new Until the latter part of the 19th century, conviction generally required trial by a defendant’s peers. In the early decades of the republic, courts actively discouraged defendants from pleading guilty to crimes and guilty pleas were relatively rare. In New York state, for instance, in 1839, the earliest year for which reliable statistics exist, just 25% of felony convictions resulted from guilty pleas. At the time that the Sixth Amendment was ratified, bench trials were unknown; nonjury trials were not available in federal court until 1930. Only after the Civil War did cases of plea bargaining appear in appellate reports, and courts and commentators widely condemned the practice as undermining the public’s interest in jury trials. As a basic structure of democracy, the jury was not something the defendant and prosecutor had a right to forgo. Not until 1930 did the U.S. Supreme Court, which had previously suggested that criminal guilt could only be obtained through a jury trial, hold that the right to a jury trial could be waived at all. In 1970, the Supreme Court, recognizing the burden of trials on the judicial system, finally endorsed plea bargaining. Today, citizens rarely serve on criminal juries because more than 90% of criminal defendants make deals and plead guilty. By increasing the frequency of criminal trials, a limitation on plea bargaining may help to restore the democratic functions of juries. The attorney general’s directive, though, aims at harmonizing the actions of local prosecutors rather than enhancing the role of juries. If juries acquit large numbers of defendants, the attorney general might decide bargained-for convictions are better than none at all. The case of sentencing reforms is much simpler. Congress wants more control over judges, who in turn seek freedom to impose the sentence they think best. It is primarily a power struggle between the judicial and legislative branches of government. Whatever the outcome of current debates on sentencing, it is unlikely to help jurors, whose interests have been excluded. How could the jury be represented in such debates? First, just as grand juries review criminal indictments, special juries should oversee the entry of guilty pleas and review plea bargains, scrutinizing these deals for fairness and consistency with their own sense of justice. Second, juries should also play a significant role at sentencing, evaluating the degree of culpability-at least giving juries a say on the question of punishment. Juries may never regain their past prominence, but reforms of the criminal justice system should take careful account of the jury and protect its democratic functions. Jason Mazzone, a professor at Brooklyn Law School, teaches constitutional law.

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