Suja Thomas is the Peer and Sarah Pedersen Professor of Law at the University of Illinois Urbana-Champaign and author of the 2016 book “The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries.” Thomas, who is working on a documentary related to her research on jury trials, spoke with News Bureau business and law editor Phil Ciciora about the potential effect of the Trump criminal and civil trials on the public perception of trial by jury.
Will the Trump criminal and civil trials have any effect on increasing interest in trial by jury or basic civic participation? Or, given the harassment jurors have faced, will it have a chilling effect?
I don’t think the current trial is going to have any effect on whether people want to participate on juries. What we know about being on a jury is that, after having served, most jurors have said that they really enjoyed the experience. They report that they value their ability to participate in this democratic process.
The Trump trial is obviously an outlier in a number of ways, including the reasons jurors might want to serve or might not want to serve. I don’t think it’s going to affect civic participation in terms of ordinary citizens not wanting to serve on juries. There will always be that element of jury duty as something some people don’t look forward to when they get that summons in the mail, but most people view it as a positive experience afterwards.
I hope all of the criminal Trump trials highlight the importance of juries. If you are accused of a crime, whether you’re a famous person or an ordinary person, you have a right for a jury of your peers to decide whether you committed a crime. I hope that it reminds the public that the Constitution was intended to give the jury the final say on whether someone goes to prison. It’s also important to recognize that it’s difficult to convince an entire group of people of anything.
So, overall, I think it’s a moment to celebrate the jury as an institution that was established in the Constitution to give ordinary citizens the power to protect our liberty. And it’s an opportunity to think about such questions, because we only have so many of these high-profile criminal and civil trials that really shine a spotlight on our trial by jury system.
Juries decide less than 4% of criminal cases and less than 1% of civil cases. What are the big factors reducing the number of jury trials?
On the criminal side of things, plea bargaining is the biggest driver of the dearth of jury trials. Prosecutors threaten defendants that they will receive much more time in prison if they insist on a jury trial and are convicted. What that means is that, every single day, huge numbers of people who are accused of crimes are coerced to plead guilty and cannot exercise their right to a jury trial.
They may plead guilty today to receive five years versus the 30-year prison sentence they will receive if they insist on a jury trial and are convicted. And through a variety of mechanisms — amping up or dismissing certain charges, for example — that’s what happens. The uncertainty of a trial by jury and a possible long sentence is intimidating, so they plead guilty and receive a shorter prison sentence or no time at all.
On the civil side, there are also few jury trials. Many cases are forced into private arbitration — where companies pay the arbitrator and win at a high rate. When cases are in court, judges often dismiss civil rights cases with terrible facts of discrimination or harassment before juries hear the cases. So, there are significant problems on the civil side as well.
Trial by jury isn’t perfect — it’s costly, time-consuming and certainly not error-free — but what is its role in upholding the social fabric and as a check on power?
When you forego a public trial in a criminal case, you’re not checking the institutions that accuse and charge people with crimes. You’re not checking the police. You’re not checking prosecutors. And when you don’t check those in power, they will abuse or, at minimum, be sloppy in the exercise of their authority.
If I were to go and interview a group of people right now about something that happened on the street and someone else were to interview that same group, we each could come to very different conclusions about what happened. Similarly, the decisions of an individual police officer or an individual prosecutor can be very different than the decision of people from the community — who are not paid by the government, who come together, weighing evidence and the competing arguments, and decide whether someone is guilty.
Ultimately, a public jury trial is an important check on the government. The jury hears what the government did and assesses whether there are issues with the behavior. As I write in my book, the jury is this missing branch of the government that we don’t think about. For example, the jury is checking the legislature because the legislature makes laws. In some circumstances, the jury will reject a law or a far-reaching application of a law to an individual.
We now have a much different perspective on marijuana prosecutions than we did 10 years ago. How many people’s lives were ruined by excessive sentencing for something that’s now mostly legal?
If some of those cases had gone to jury trials, it’s possible some of those defendants would not have been convicted because the community would have said this is excessive, and perhaps there would have been an earlier impetus to change the law.
Is trial by jury exclusively a province of the wealthy? Does the Trump hush-money trial currently underway in New York highlight a two-tier system of justice in our country?
The way the criminal justice system is set up right now certainly favors the wealthy.
If we wanted to change that system, we could. But we choose not to. While we need to put more money into public defender offices, if we simply made the system fair — that a defendant received the same sentence before or after a jury trial — then the defendant would exercise their right to a jury trial much more often. But right now, too many legislators want to appear to be tough on crime. This, in turn, gives prosecutors the tools to continue to force large numbers of people every day to plead guilty.