RICHMOND — Jury trials remain a favorite of American film and literature but not of the criminal-justice system, where their use long has been in decline here and across the country.
The trend has accelerated in recent decades as tougher sentencing laws leave more defendants unwilling to assert a right found in Magna Carta and the U.S. Constitution and that is recognized by all states.
In the year that ended June 30, 2008, little more than 1 percent of felony convictions in Virginia courts were at the hands of jurors. Nearly 90 percent were the result of guilty pleas and the rest in trials before judges.
Guilty pleas help keep courts running efficiently, but as relatively fewer people perform one of the most serious of civic duties, experts believe public confidence in the criminal-justice system, if not justice itself, might suffer.
Josh Bowers, a professor of law at the University of Virginia, said, “We’re already at what would seem to be almost a bare minimum of jury trials for a criminal-justice system that recognizes a jury trial right.”
It did not happen overnight.
Thirty years ago, Albert Alschuler, a law professor at the University of Chicago, complained in Time magazine that “here we have an elaborate jury trial system and only 10 percent of the accused get to use it.”
“That’s like solving America’s transportation problems by giving 10 percent Cadillacs and making the rest go barefoot,” he said. Reached by telephone recently, Alschuler said “things are much worse” these days.
“Trials and, especially, sentencing proceedings have become ever more complicated, and legislatures have made many additions to the prosecutors’ ‘tool kit,’” he said.
The jury trial rate has been cut in half across the country — even more so in Virginia — since Alschuler’s complaint of 1978.
The Virginia Supreme Court does not keep data on the percentage of criminal trials that are decided each year by jurors.
However, according to court figures, from 1989 to 2008, as the number of criminal cases handled by circuit courts more than doubled (from 88,036 to 188,824), the number of juries empanelled in criminal cases was more than halved (from 2,636 to 1,272).
According to the Virginia Criminal Sentencing Commission, in the year that ended June 30, 2008, juries were responsible for just 1.3 percent of 27,195 felony convictions in Virginia — the lowest percentage yet recorded by the commission.
Nationally, of the more than 1 million felony convictions in 2004, 95 percent were resolved by guilty pleas, with the remaining 5 percent in judge or jury trials, according to the U.S. Bureau of Justice Statistics.
Bowers, Alschuler and others believe that tough sentencing laws passed by Congress and the states in the 1980s and 1990s in response to rising crime — and predictions of rising crime — are a factor contributing to the national decline in jury trials.
Virginia enacted a major “truth in sentencing” overhaul in 1995 that ended parole, put sentencing guidelines in place, and stiffened prison terms for violent and repeat offenders.
The maximum terms for particular crimes were left in the state code, but in order not to overcrowd prisons, guideline sentences were created, based in large part on the actual time served by inmates for particular crimes under the old parole system.
For example, if a 20-year sentence for a given crime generally really meant five years behind bars, then the guideline sentence range would be around five years. When sentencing after guilty pleas or bench trials, judges are strongly encouraged to follow the guidelines.
However, Virginia is one of only a handful of states where juries sentence in addition to determining guilt. Also, since 1994, juries here have been told about a defendant’s prior criminal record when deciding on a sentence.
Unlike judges, juries are not informed of the sentencing guidelines and must sentence within the minimum and maximum terms that remain in the state code.
So in cases where the state law calls for a minimum sentence of five years, five years is the best a defendant can hope to get from a jury. If the defendant pleads guilty, however, a judge complying with the guideline can suspend four years of the five-year term.
Also, because the judge, defendant and the prosecution must all agree to waive a jury trial, by threatening to demand a jury, prosecutors are in a better position to negotiate, or force guilty pleas.
In the first full fiscal year after the 1995 truth-in-sentencing reforms, jury convictions in Virginia were cut in half — from 4 percent of all felonies to 2 percent. The number has risen and fallen since, to the most recent level of 1.3 percent.
And since 1995, jury sentences tend to be far stiffer than those from judges.
In a 2004 study of jury sentencing in Virginia and two other states, two professors at the Vanderbilt University School of Law confidentially surveyed judges, prosecutors and defense attorneys.
They found that jury sentencing is supported overwhelmingly by Virginia prosecutors — and among some defense attorneys — because they believe it deters jury trials.
One defense lawyer told the authors: “I’ve had peers call me and ask me to talk their clients into pleading guilty ... because the guidelines give them a way to get out of having to go to jury trial. They tell their clients ‘you’ll do better under the guidelines.’”
John Douglass, a former federal prosecutor and dean of the University of Richmond School of Law, said, “It’s ironic — jury sentencing in Virginia is suppressing the right to jury trial.”
“The notion that your opportunity for a jury trial should come at the cost of a significantly higher sentence is troubling,” he said. “It seems odd that a jury can be used as a threat, rather than a right, or an opportunity.”
Bowers said the risk of a “catastrophic” jury sentence can be so intimidating that: “I’m sure even the innocent are not immune from plea bargaining.”
“Prosecutors are not wicked. They believe that the people they’re prosecuting are, in fact, guilty,” he said.
“But the innocent person is in all likelihood going to have a stronger defense and the prosecution is going to have a weaker case, and a wise prosecutor will calibrate plea bargains to account for the weakness of the case,” Bowers said.
With a weak case, a prosecutor might make a more generous offer to win a conviction. “So even the innocent defendant may end up taking a plea because it’s the rational thing to do,” Bowers said.
“The innocent person may decide to stand on principle and turn down a plea, but when that happens, the plea might just get a little sweeter and the person may end up pleading anyway,” he said.
As a result, Bowers said, “you have this perversity where the very cases that we would want to test in the crucible of trial may be the very cases that more frequently end up plea-bargaining out.”
Richmond Commonwealth’s Attorney Michael N. Herring agrees that for a defendant, “juries are obviously risky and very, very unpredictable. Every good lawyer I know has lost many cases he or she [thought they] couldn’t lose.”
On the other hand, Herring said, in some egregious cases, “if you have nothing to lose as a defendant,
Herring you are facing charges that carried a [stiff] minimum term at sentencing, then you have an absolute incentive to try your case by jury.”
Figures kept by the Virginia Criminal Sentencing Commission support Herring’s observation. In the most recent year for which figures are available, juries were responsible for just 0.5 percent of all drug and property crime convictions.
However, for crimes against people — murder, assault, rape, etc. — where the minimum punishments are stiffest, the jury conviction rate was 10 times higher, at 5 percent (though 5 percent is the lowest ever measured by the commission for crimes against people).
Bowers said the trend toward fewer juries was going on before tougher modern sentencing and the use of guidelines. Long ago, he said, when there were far fewer procedural protections for defendants, there were far more jury trials.
“It wasn’t uncommon for a court to hear 20 felony jury trials in a day in the 18th-century court.”
“Because of that, they didn’t have to rely as much on guilty pleas and plea bargains. But, obviously, a 20-minute trial was likely to have a much higher error rate than the formalized, full-dress trial that we have today,” he said.
The full jury trial of today, however, is expensive and time-consuming. Douglass said heavy caseloads make it difficult to try many cases. “So prosecutors and defense counsel are looking for an alternative, and it leads to plea bargaining,” he said.
Claire G. Cardwell, a criminal-defense lawyer and former state prosecutor, said that at times she prefers jury trials.
“I still think a jury ... is much more likely to find a client not guilty. Judges are more jaded, because they’ve been doing it a long time,” she said.
But, she said, at times plea-bargaining can have benefits over a jury trial for the defendant and the government.
“I think, at least in the Richmond area, the criminal bar is a pretty well-oiled machine, and to the extent that we’re able to work cases out in a reasonable fashion, we do so,” she said.
“We can call a prosecutor and they’ll tell us what the case is about. We’ll tell them what our defense is sometimes, and then we work it out without the problem of going to trial,” she said.
Bowers believes less citizen participation in the justice system has had some positive effects — helping eliminate or lessen racial bias and public passion. But, he said, things may have swung too far in the other direction.
“People see criminal justice today, rightly, as a professionalized affair where most of the decisions that end up disposing of criminal cases happen behind closed doors — prosecutors and defense attorneys reaching agreements outside the light of day.”
As a result, he said, public proceedings often merely are ritual endings for decisions that were reached earlier outside of view. More jury trials, Bowers said, “led to people finding a legitimacy in the criminal-justice system that people don’t necessarily find today.”
Douglass said juries have other crucial roles.
“If few cases are ever tested through jury trials, there can be a danger we don’t get things right. It’s good for prosecutors and police to face that test,” Douglass said.
“And it goes the other way, too,” he said. “It’s important for juries to have a voice in identifying the guilty.”
Frank Green is a staff writer for the Richmond Times-Dispatch.