by Suja A. Thomas, Professor of Law, University of Illinois
Since Trump took office, several issues, including immigration, have highlighted the importance of checks and balances between the branches of the government and between the federal government and the states.
My book The Missing American Jury argues that the jury was intended to serve as a similar check on the government, but its authority has shifted to other parts of the government, making the jury’s independent governmental role precarious.
While statistics from the founding are rare, there’s no question that the jury decides far fewer cases now than in the past. Juries decide less than four percent of criminal cases and less one percent of civil cases filed in federal and state court. And in many states, grand juries do not decide whether serious cases should proceed against criminal defendants.
So what has happened to the jury? Over 95 percent of criminal cases are plea bargained, with some set of these pleas actually later resulting in innocence findings. In civil cases, judges may dismiss cases on summary judgment. For example, in factually intensive employment discrimination cases (discussed in another recent book), judges often conclude that a reasonable jury could not find for the employee—dismissing claims in whole or in part at a rate of 70 percent or more in some districts.
These stark statistics do not even account for the cases that are decided outside of court—those determined through settlement, arbitration or administrative agencies.
Often inefficiency, cost, inaccuracy and incompetence are proffered for why the jury decides few cases—why we use procedures like plea bargaining, summary judgment and administrative determinations, instead of juries. My book freshly examines this issue of why the jury has fallen.