Facade of the United States Court House of the Southern District of New York in Lower Manhattan.
Facade of the United States Court House of the Southern District of New York in Lower Manhattan. (janniswerner)

The decline of federal jury trials should concern all of us who care about the fair administration of justice in the United States.

In criminal cases, the jury acts to protect the individual against the power of the state and thus preserve liberty. As an institution, it is a decision-procedure for settling disputes that forces advocates to test their respective positions against the common sense of 12 or fewer ordinary persons whose judgment is guided by the judge’s legal instructions. It also serves the important democratic functions of enabling the average citizen to participate in an important process of government.

Less jury trials means a diminishing return for citizens and government alike in the achievement of these objectives.

A QUESTION OF CONSEQUENCES

Many, with some plausibility, attribute the decline of criminal jury trials to an effect of the Federal Sentencing Guide­lines and mandatory sentences. We may never know whether these are one of many or “the” causes of this decline.

More important, in focusing on causal explanation for less jury trials, we have failed to examine far more consequential issues about the effect of the declining use of juries.

However, beneath the surface, certain developments bear critical scrutiny because of their potential for trans­formation of the judicial process and its future use.

On the civil side, more disputes between private parties are being transferred to arbitration. Those civil cases that are litigated in federal courts are typically settled. Civil settlements, except where court approval is required such as in class actions, are negotiated by the lawyers and parties in private. The agreement is often not publicly available. And the public is unable to scrutinize its fairness. Arbitration is an entirely private process.

On the criminal side, in “white-collar” cases, we have an administrative adjudicatory process that faces minimal public scrutiny.

In 1998, Gerard E. Lynch, then a professor at Columbia Law School and now a judge on U.S. Court of Appeals for the Second Circuit, wrote a Fordham Law Review article titled “Our Administrative System of Criminal Justice.”

Lynch described the white-collar criminal system we engage in, as opposed to our “idealized” adversarial process, as a “de facto administrative process [that] operates within the shell of the [formal] due process [judicial] model [with its right to jury trials and other rigorous procedural safeguards].”

Defense lawyers meet with prosecutors in private and negotiate plea deals and, when the outcome of such plea-bargaining is not to the liking of defense counsel, she may “appeal” to more senior prosecutors for a different resolution.

Once agreement is reached, the parties present it to a judge who then has to “take” the defendant’s guilty plea on the slimmest of record.

Often prosecutors and defense lawyers agree not to present certain facts or not to charge certain crimes, and the judge lacks the mechanism with which to develop those facts.

The prosecutor’s exercise of discretion (whether, and what, to charge) cannot be examined by the court. The judge’s role in taking the plea is procedural without regard to the substantive merits of the deal. This is problematic.

These developments converge in the absence of transparency and the declining participation of ordinary persons in the administration of justice.

TOWARD TRANSPARENCY

We must have a fair justice system. It is equally important, that our citizens believe that our justice system is just. Only transparency of, and participation of our citizens in, that system can reassure them that their belief is true.

Louis Brandeis famously said that sunlight is the best disinfectant, a seemingly paradoxical comment from the person who founded the right to privacy. But there is no paradox at all. Privacy and transparency are compatible. One of the great vices of communism, Martin Luther King Jr. noted, is that it did not realize that life is private and intimate. One of the defects of capitalism, King said, is that it does not recognize that life is also social and communal.

Participation by the ordinary individual in public affairs such as jury service provides the chance to share in our communal life. Jurors learn the functions of government, legitimize them and serve as a check on the tendency of those in power in a democratic society to abuse it.

But, if we are to have less jury trials and more arbitration and an administrative criminal process, we must not also lose the important nonjudicial functions the jury has served. In developing our new institutions to administer justice, we must find ways to protect the values of transparency and citizen participation.

We should give district judges greater authority under the Federal Rules of Criminal Procedure to scrutinize plea agreements in public before accepting a plea instead of the current standard that the court needs only to find that there is a “factual basis” for it and that the defendant has entered into it voluntarily.

In arbitrations, the narrow scope of judicial review before a private award is confirmed should be broadened to permit the court to scrutinize the fairness of the result of this private process before it receives a public judicial seal of approval. These recommendations will expand the public record available to the press and the public to enable them to better assess the fairness of our system of administration of justice. At least, if there is less public participation in jury trials due to the lower number of such trials, the public will be able to have access to judicial scrutiny of criminal pleas and review of private arbitration awards.