Criminal Justice

The Founders Loved Jury Trials. Almost No One Gets One Anymore.

John Adams called jury trials part of the "heart and lungs of liberty." Today, defendants are often punished for exercising that very right.


What is the Sixth Amendment?

You wouldn't be blamed for having to consult Google to answer that question. The Founders are rolling in their graves anyway.

It's the right to a trial by jury, and it's one that society has all but disposed of—despite the Framers' insistence that it be included in the Bill of Rights as one of the primary bulwarks against government tyranny.

They didn't exactly mince words. "Representative government and trial by jury are the heart and lungs of liberty," wrote John Adams. "Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs."

One wonders what animalistic metaphors Adams would conjure today if he could see the U.S. criminal justice system in motion: one in which about 97 percent of trials are resolved without juries, devoid of the sacrosanct lifeblood that keeps human liberty from death by suffocation.

That tool has been supplanted by the plea bargain. In popular culture, that's widely seen as advantageous to defendants. In reality, it's been disastrous. It epitomizes government coercion. It epitomizes what the Founders warned against.

That's because the places where we're accustomed to seeing the criminal legal system play out—on shows like Law and Order: Special Victims Unit—can't and don't account for how plea "deals" often work in practice. The bulk of a prosecutor's job is not spent in the hallowed halls of a courtroom participating in a high-stakes battle over someone's liberty, all while journalists wait in the wings to capture the victor's speech on marble steps. It's spent in backrooms, with district attorneys "charge-stacking," or filing multiple criminal charges against someone for the same offense, calculating a grisly potential prison sentence, and offering to make some of that go away—so long as the defendant in question does not exercise his or her constitutional right to a trial by jury.

If they refuse, then they will risk a substantially higher time behind bars, not because a prosecutor views it as necessary for public safety but because he or she dared to inconvenience them with a trial. After all, what the defendant is accused of didn't change. But trials are expensive. And the government can never be sure when it will win, so better to avoid them where possible.

That latter part—the uncertainty—is supposed to be the point. It's true that many criminal defendants are guilty. It's also true that some are innocent and have been forced to pay with their liberty anyway. A person who is not guilty likely wants to go to trial. But why risk a decade behind bars for insisting on your Sixth Amendment right when you could be out in two or three? 

Some have rolled those dice, and with mixed results. Consider the case of Brandon Bostian, an Amtrak engineer who accidentally crashed a train in 2015 when he said he was distracted by radio reports of other trains being pelted with bullets or rocks. Prosecutors charged him with causing a catastrophe, eight counts of involuntary manslaughter, and over 200 counts of reckless endangerment.

As the trial grew nearer, prosecutors came around with a deal: Plead "no contest" to 9 counts, or go to trial and die in prison. 

So, in March, he went to trial, where he was acquitted on all charges in 90 minutes.

Nothing encapsulated the ridiculousness of Bostian's position better than the jurist overseeing the case. In declining the deal, he was possibly subjecting himself to "more than a lifetime of incarceration," said Judge Barbara McDermott. That's not because the accusations against Bostian had been altered or were in dispute, and it's not because the prosecutors finally saw the light. Those attorneys admitted with their offered bargain that Bostian need not serve a lifetime in prison. But that excess punishment was left in place to strong-arm him out of exercising his constitutional right to a jury trial so that the government would not have to prove why Bostian's liberty should be taken away—perhaps because their case was frankly awful. And yet I still can't say I would have had the guts to do the same, had I been in Bostian's shoes.

It's a creative way to subvert the Constitution, emboldened by local legislatures with a slew of tough-on-crime charging and sentencing laws. In some ways, it could very well be illegal. The Maricopa County Attorney's Office, for example, has made a habit of telling defendants in fine print that they will spend more time in prison if they merely ask to attend a probable cause hearing or see the evidence against them. Such was the case with Levonta Barker, who was offered a 7.5-year plea deal for aggravated assault and kidnapping with the stipulation that prosecutors would ratchet it up should he want to learn more about the state's evidence.

Which was important, because he was innocent—something that should have been immediately apparent, as he did not match the description of the perpetrator rendered in the police department's own reports. He would go on to spend a month in jail before his lawyer was able to secure his release, though it's understandable why someone in Barker's position may have taken the deal. When 7.5 years is your minimum, it's best not to bargain your life away.

Alleged criminal defendants aren't the most popular people in society. But the Constitution isn't meant to protect the popular, as they typically don't need protecting. It's meant to provide safeguards for those who the government would otherwise cast aside: the alleged killer, voter fraudster, Capitol rioter.

After all, the Founders were radicals. So on this Fourth of July, remember this: that their radicalism didn't begin and end with the First and Second Amendments.