Two hundred and fifty years ago, a group of men gathered in Philadelphia to declare America’s independence from Great Britain. While the familiar story often focuses on taxes, especially on tea, and the notable protest in Boston Harbor, the grievances articulated in the Declaration of Independence went beyond taxation disputes. They touched upon a fundamental aspect of self-government: the right to a trial by jury.
In 1767, the Townshend Acts imposed new taxes on colonial trade and prompted stricter enforcement. British authorities began prosecuting alleged smugglers, yet colonial juries, drawn from the local population, frequently refused to convict. Through nullification, they resisted laws they deemed unjust. Frustrated, Parliament responded in 1768 by creating tribunals that eliminated juries altogether, leaving a single Crown-appointed judge to determine guilt or innocence. This effectively removed the public’s role in justice administration.
The situation worsened when Parliament authorized transferring certain criminal trials to England, requiring colonists to defend themselves before distant courts. These events were fresh in the minds of the Founders who drafted the Declaration of Independence in 1776. Among the king’s abuses, it was noted that he had deprived colonists of the benefits of trial by jury, made judges dependent on his will, and transported them overseas for trial. These grievances were central to the claim that the Crown imposed absolute tyranny.
The Constitution addressed these concerns by guaranteeing the right to trial by jury in criminal cases. The Bill of Rights reinforced this by ensuring jury trials in criminal as well as civil cases, and requiring that criminal trials occur in the state where the alleged crime was committed. Having experienced the dangers of judge-controlled tribunals, the Founders were determined to preserve the jury as a cornerstone of American justice.
However, modern American prosecutors have drastically altered this legal landscape. Today, around 95 percent of criminal cases in the United States are resolved through guilty pleas rather than trials. In plea bargaining, prosecutors may threaten harsh sentences for defendants who opt for trial or offer lenient sentences to those who admit guilt, resulting in the virtual elimination of jury trials.
This transformation was enabled by the Supreme Court, which aligned with Richard Nixon’s law and order agenda. As late as May 1968, the Court ruled against needlessly encouraging guilty pleas and waiving jury trials. Yet, by 1970, the Court retreated, upholding plea-bargaining practices even when faced with defendants receiving significantly harsher penalties for choosing trial. The Court saw “nothing impermissible” in encouraging guilty pleas with promises of leniency. It soon extolled plea bargaining as essential to justice administration.
The Founders regarded juries as essential. Jury trials protect the accused from false accusations and coercion while shielding the community from lenient sentencing for dangerous offenders. Modern plea bargains undermine these vital interests.
Recently, there are signs the Supreme Court is reconsidering its stance. In 2020, it struck down state laws allowing non-unanimous jury verdicts in criminal cases, acknowledging their discriminatory history. In June, the Court agreed to reconsider laws in several states permitting six-person juries instead of the traditional twelve in criminal cases. Remarkably, some justices have begun questioning the plea-bargaining system itself. In a recent opinion, Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, noted that jury trials have largely vanished, replaced by “a conveyor belt of plea bargains.” They acknowledged that the Court bears some responsibility for condoning coercive tactics designed to induce defendants to accept plea deals.
This may indicate a readiness to reevaluate the assumptions governing the criminal justice system. The Founders saw jury trials as essential to liberty. If the modern system has strayed from this understanding, the question is whether it can realign. As the 250th anniversary of American independence prompts reflection on foundational values, this issue merits close attention.
Matt Martens is a trial lawyer with the WilmerHale law firm in Washington, D.C. He has tried some of the country’s most significant cases, both civil and criminal. He is also an award-winning author of “Reforming Criminal Justice.”