Imagine you have omnipotent power over nature but a poor understanding of how it actually works. One day, after being stung during a picnic, you decide to get rid of all honeybees. What would happen? Before long, wide swaths of the terrestrial ecosystem would begin to fall apart. Crops that depend on bees for pollination would fail; various other plants and trees would be unable to reproduce and would start dying off, followed by the countless insects, birds, and mammals that depend on those flora to survive. This is an apt metaphor for what has happened to America’s criminal justice system over the past century as we have taken the very heart of that system — citizen participation, in the form of jury trials — and ripped it right out. The result has been every bit as disastrous for the criminal justice “ecosystem” as the elimination of bees would be for the natural one.

The jury trial is the only right mentioned in both the unamended original Constitution and the Bill of Rights. Indeed, the Constitution devotes more words to the subject of jury trials than to any other right. The Founders’ intent to put citizen participation at the very heart of our criminal justice system is unmistakable. And yet the criminal jury trial is now all but extinct. More than 95 percent of all criminal convictions today are obtained through plea bargains — that is, supposedly voluntary confessions. In the federal system, more than 97 percent of all criminal convictions come from plea bargains. Today’s federal prosecutors rarely lose a case because they rarely go to trial.One of the most important questions in criminal law and criminal justice reform is why so few people are interested in exercising their right to force the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury. There appear to be two main reasons. First, the plea-bargaining process can be — and often is — extraordinarily coercive. Second, the criminal jury trial itself has been fundamentally transformed over time so that it is much less valuable to criminal defendants now than it was earlier in our nation’s history.

Cato’s Project on Criminal Justice considers the practical elimination of citizen participation in the administration of criminal justice through coercive plea bargaining and the diminished power of the jury to be among the American criminal justice system’s chief pathologies, and we have devised a strategic plan to challenge it.

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