By Dr. Ken Broda Bahm:
This blog, like much of the internet, relies on RSS or “Really Simple Syndication.” For many of the photos that grace my posts, including this one, I also use the “Creative Commons” system of openly licensing content. The ideas for both RSS and Creative Commons licensing, as well as Reddit and numerous other innovations, can be traced to Aaron Swartz, pictured above. A gifted programmer since childhood and social media visionary, he’s also been an activist for open electronic access: So opposed to the Stop Online Piracy Act that in 2011 he tapped into MIT’s network in order to download thousands of copyright protected articles from the JSTOR academic database. For that, he was facing as much as $1 million in fines and 35 years in jail. In a legal case that dragged on for two years and depleted the 26-year-old’s finances, critics charge that the government followed a common path of creating a large and formidable pile of charges in order to force a plea agreement: “Charge it up, then plead it down.”
Only in this case, Swartz took a different path last month and took his own life. We can’t know whether this act was due to Swartz’s history with depression or the forced choice between pleading guilty to a felony or taking the risk of serving up to 35 years in prison. But the loss has brought new attention to the practice of resolving the vast majority of criminal cases through plea deals. A thorough new article in the Boston Globe addresses the Swartz case as symptomatic of a plea-based system of prosecution which has led to a disconnect between the legal process and the events at issue, and outcomes that reflect not necessarily a “truth,” but a calculation. As the writer, Leon Neyfakh writes, “By stacking charges as high as possible and wielding the threat of mandatory sentencing laws, the argument goes, prosecutors intimidate defendants and make it all but impossible to turn down their offers.” So in a system that operates intentionally to create duress, it is no surprise that there are some victims. The solution, Neyfakh suggests, may be a renewed and reassessed role for juries as a check against prosecutorial excess. While Persuasive Litigator usually focuses on civil litigation, I wanted to consider this example from the criminal world for two reasons: one, it is a huge issue, and two, the broader concern over resolution through duress has parallels in the civil world as well.
Unchecked Power Without a Criminal Jury
Focusing on our theoretic rights to a trial by jury and adding in the stories we carry about resolution by the twelve people “good and true,” we can forget that this picture doesn’t at all reflect the reality of America’s criminal justice system. In an estimated 95 percent of cases, there is no jury determining the ultimate facts. Grand juries are required in only 19 states, and in the generally one-sided presentation of probable cause that exists for all of those states, save New York which provides defendants the right to present exonerating evidence, indictments are close to automatic as grand juries take a dim view of the proverbial “ham sandwich” as well. The end result is that in nearly all cases, the only real check on the charges driving plea deals is the prosecutor’s own discretion. What is missing is the role of popular judgement. As Professor Glenn Reynolds of the University of Tennessee College of Law notes, “What we really have is a plea bargain system with a thin froth of showy trials floating on top.”
The costs of a plea-based system can take the form of a disconnect between what is charged and what a group of reasonable citizens would see as fair and proportional. On that score, Aaron Swartz’s girlfriend, Taren Stinebrickner-Kauffman, doesn’t hold back. In a harrowing blog post she writes, “I believe that Aaron’s death was caused by a criminal justice system that prioritizes power over mercy, vengeance over justice; a system that punishes innocent people for trying to prove their innocence instead of accepting plea deals that mark them as criminals in perpetuity; a system where incentives and power structures align for prosecutors to destroy the life of an innovator like Aaron in the pursuit of their own ambitions.”
Whether a jury would ever do the same is open for debate. But a group of scholars described in the Boston Globe article is currently taking a look at whether a broader role for public participation might improve the system. “The explosion of plea bargaining has really marginalized the role of laypeople,” said Ohio State University law professor Ric Simmons, “What we want to do in this area is think of ways to introduce…populist participation and a common sense check into the prosecutors’ decision making process.” One advantage jurors may bring lies in the processes of moral reasoning that I’ve addressed in recent posts. University of Virginia law professor and former public defender Josh Bowers notes that while jurors can make mistakes on the facts and law, “they are much better when it comes to moral reasoning-using everyday wisdom and their experience and existence in the world to make moral judgments about what we ought to do.”
One proposal for bringing this perspective back into the process is the notion of a “plea jury” advanced by Willamette University Law professor Laura Appleman (2010). After detailing the crisis of the declining criminal jury, Appleman calls for the use of a special guilty plea jury to hear the plea from the defendant and decide whether the facts fit the crime, whether the plea is knowing and voluntary, and whether the proposed sentence is appropriate. While we might expect that a plea jury would display some of the same deference shown at a grand jury level, Appleman argues that including a public role in what would otherwise be a private agreement would serve as a check on inappropriate charges or undue coercion. Knowing that a jury will hear about it, a prosecutor might also think twice about including elements like stipulated testimony in another trial when those elements might seem questionable on face. There are details to that solution that could prove vexing at least in the short-term, but the most compelling part of the idea is that it envisions a way for the public to have a continuing stake and role in the administration of criminal justice.
A Reality Check for Civil Settlement
While the Boston Globe article and the associated legal commentary, including the idea of a plea jury, centers on plea bargaining within the criminal justice system, there are definite takeaways for those who work on the civil side. Looking at the way lawsuits tend to end, there is a similar disconnect between the process and the final result, and the very real possibility that a case will be resolved based not on an accurate assessment of ‘just deserts,’ but simply as a final resting point when negotiation gives out and exhaustion takes over. “Charge it up, then plead it down” could be seen as a summary of many litigation life cycles as well, particularly when the rules of civil discovery provide such a long opportunity for the bargaining to play out.
The civil justice system, in that way, is also plagued by the machinery of duress and has a comparable risk of being walled off from the leveling influence of popular judgment, equities, and fairness. In that context, Appleman’s concept of a “plea jury” could be thought of as a “settlement jury.” Before deciding that a given settlement represents a good outcome, why not ask a group of average citizens whether they think it is a good outcome? Their answers could provide alternate benchmarks or embolden parties to reject current offers and proceed to trial. Unlike the “plea jury,” however, the “settlement jury” wouldn’t require a legal reform in order to be instituted.
Instead, a popular assessment of a settlement offer could be simply grafted onto existing mock trial or focus group research. While such projects usually proceed as if they’re a dress rehearsal for the trial itself (a trial which is usually avoided), why not treat the project as a way of testing and deciding the advisability of a proposed settlement? Even if settlement isn’t the main focus, it would still be valuable to take a moment at the very end of the final interview with participants and ask them, “The parties in this case are considering resolving the dispute with a settlement of X amount. Based on what you’ve heard today, would you call that too much, too little, or just right? Why? If not that, what would be a fair resolution for everyone in this case?”
Ultimately, the fact that participants in both the civil and criminal systems need to acknowledge is the degree to which the system envisioned in our constitution and idealized in our traditions is no longer the system we have. Once we had a civil trial process in which public trials were so much the norm that other ways of finding resolution were seen as “alternative,” and a criminal system in which proving guilt was more important than finding ways to facilitate the admission of guilt. How things change.
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Other Posts on the Role of the Jury:
- Don’t Pull the Plug on the American Civil Jury Just Yet
- The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials
- Consider the Jury’s Political Role
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Appleman, Laura I. (2010).The Plea Jury. 85 Indiana Law Journal 731. URL: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1049&context=ilj
Photo Credit: ragesoss, Flickr Creative Commons