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.
For example, it describes several Supreme Court cases where the Court first decided issues in favor of jury authority but later came out against jury authority on the same issues. In one case, the Court originally held a judge could not order the equivalent of judgment as a matter of law in a civil case—that is, could not overturn a jury verdict in favor of one party and decide for the other party. Twenty years later, however, the Court changed its mind deciding that a judge could find the opposite of what the jury decided. Such opinions have eroded jury authority and positioned the jury as often only advisory to a judge.
My book also shows that despite the impression that the American jury has more power than other countries’ juries, this is not always the case. For example, with no or different plea bargaining, the jury’s power in criminal cases in some other nations is greater than the jury’s authority here in the United States. Similarly, in civil cases, while the United States has a jury and most other countries do not, the system in the United States is often not significantly different from other countries’ procedures due to the power of American judges to take away cases from juries and to overturn juries’ decisions.
My book ultimately argues that the jury should be repositioned as essentially a branch of the government serving as a check on other parts of the government. Accordingly it argues that the constitutional propriety of procedures such as plea bargaining, summary judgment and administrative proceedings should be questioned and at minimum re-envisioned.
I have tried to bring attention to the issue of the missing jury through my book as well as a short 4 minute TED-Ed animated educational video that I hope you will enjoy. I hope you might consider sharing the video on social media so that a broader set of people learns about this constitutional issue.