Two hundred and fifty years ago, leaders gathered in Philadelphia to proclaim America’s independence from Great Britain. The well-known narrative typically highlights taxes, notably on tea, and the Boston Harbor protest. However, the grievances in the Declaration of Independence were broader, touching upon key aspects of self-government like the right to a trial by jury.

In 1767, the Townshend Acts introduced new taxes on colonial trade, leading to stricter law enforcement. British authorities began prosecuting suspected smugglers. Colonial juries, however, often refused to convict, practicing nullification against what they felt were unjust laws. In response, Parliament established tribunals in 1768 that bypassed juries. These courts, with judges appointed and paid by the Crown, determined verdicts, excluding public input from justice procedures.

The situation deteriorated when Parliament allowed certain criminal trials to be held in England, forcing colonists to face distant courts. These developments were freshly remembered by the Founders who created the Declaration of Independence in 1776. They cited that the Crown had made judges dependent on its direction, denied the colonists trial by jury benefits, and transported them overseas for trials. These points were not trivial; they were core arguments that branded the Crown’s rule as ‘absolute tyranny.’

The Constitution addressed these concerns by guaranteeing trial by jury in criminal cases. The Bill of Rights reinforced this by ensuring jury trials in both criminal and civil cases and mandating that criminal trials occur in the state of the alleged crime. The Founders were determined to preserve the jury system as an American justice foundation, having witnessed the risks of judge-controlled tribunals.

Today, modern American prosecutors often surpass King George III in denying jury trials. Approximately 95% of U.S. criminal cases conclude with guilty pleas rather than trials. Plea bargaining involves prosecutors using severe sentence threats for trial optors or lenient deals for dangerous offenders avoiding responsibility. This effectively eradicates trials, whether jury or judge-led.

The transition occurred as the Supreme Court permitted it, aligning with Richard Nixon’s ‘law and order’ agenda. In May 1968, the court ruled against excessive encouragement of guilty pleas and jury trial waivers. Yet by 1970, it reversed, supporting plea deals even with much harsher trial penalties looming. The court deemed it acceptable to encourage pleas through leniency offers. A year later, it praised plea bargaining as crucial to justice administration.

The Founders considered juries essential for justice. Jury trials publicly review and scrutinize crime evidence, protecting the accused from wrongful accusations and forced guilty admissions, while safeguarding the community from lenient sentencing of dangerous offenders. Plea bargains undermine these vital interests.

Signs suggest the current Supreme Court is reconsidering its stance. In 2020, it invalidated state laws allowing non-unanimous jury verdicts, citing discriminatory origins. Recently, the court agreed to review cases involving smaller six-person juries instead of twelve in criminal trials. Notably, some justices question the modern plea-bargaining system. Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, noted that jury trials have largely succumbed to ‘a conveyor belt of plea bargains.’ They admitted some court responsibility for permitting ‘coercive prosecutorial tactics inducing plea deals,’ indicating a readiness to reevaluate criminal justice system assumptions.

The Founders saw jury trials as key to liberty. If the current system deviates from this understanding, the challenge now is realigning it. As the 250th anniversary of American independence encourages reflection on foundational values, addressing this issue is crucial.

Matt Martens is a trial lawyer at WilmerHale in Washington, D.C., involved in significant civil and criminal cases. He authored the award-winning ‘Reforming Criminal Justice.’

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