The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges

Abstract

“Do not go gentle into that good night... Rage, rage against the dying of the light.” Federal criminal jury trials are dying. Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of federal criminal jury trials decreased by more than 50 percent. During the same ten-year span, the portion of cases disposed of by trial similarly declined by 46 percent. Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see. The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic resolutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury. This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s. Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate. Prior scholarship has blamed mandatory minimum penalties and mandatory Federal Sentencing Guidelines as the principal agents of the trial decline. This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results. Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a recent prosecutorial push to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline. By tracing trial statistics in the twenty-first century, this Article identifies new factors, largely unexamined in the vanishing trial literature, that have arguably driven trial numbers to even lower levels. Specifically, the authors contend that Booker, changes in Department of Justice policies, and other extrinsic factors outside the criminal justice system have further marginalized the existence of trials and juries. The authors lament that the sentencing hearing has replaced the trial as the paramount proceeding in most criminal cases and explore the consequences of plea agreements supplanting the “public square” openness of trials. By doing so, the authors hope to embolden the players in the criminal justice system to “not go gentle” into a trial-less system, but rather, to “[r]age, rage against the dying of the [trial] light.”