FedSoc Blog

Can Juries Tame Prosecutors Gone Wild?


by Publius
Posted February 04, 2013, 9:56 AM

The Boston Globe features an article inspired by the suicide of internet pioneer Aaron Swartz:

. . . Prosecutors, even the most conscientious ones, work within a system that is set up to reward toughness, and concerned lawyers, activists, and legal scholars have been calling for more checks on their power for years. But changing the status quo has proven difficult, in large part because voters have repeatedly demonstrated their preference for prosecutors who know how to get convictions swiftly and often.

By now, there have been lots of ideas for how to rein in prosecutorial power. Some have suggested judges should play a bigger role in reviewing charging decisions. Others want to reduce the number of laws on the books, so that people can’t be charged with 13 overlapping crimes when they’ve really just committed one or two. Others still have argued that prosecutors should be forced to reimburse citizens for legal fees when charges end up getting dropped or they’re found not guilty.

But an outspoken group of thinkers has proposed another approach to the problem—one that begins with the observation that fewer than 5 percent of cases brought by American prosecutors every year lead to an actual jury trial, while the rest play out in plea bargains almost entirely behind closed doors. In practice, that means juries have all but vanished from the justice system, replaced by a highly efficient machine that processes cases without ever stopping to consider what seems moral or fair. To rein prosecutors back in, these scholars argue, America should reinstate ordinary citizens to their rightful place in the process, and with them a common-sense vision of fairness.

“The explosion of plea bargaining has really marginalized the role of laypeople,” said Ric Simmons, a professor at the Moritz College of Law at the Ohio State University who specializes in criminal law. “What we want to do in this area is think of ways to introduce...populist participation and a common-sense check into the prosecutors’ decision-making process.”

Simmons and his allies have proposed imaginative new ways in which the judgment of laypeople could help restore balance in the secretive early phases of criminal justice. They call for new kinds of juries or new uses—and new powers—for the ones we already have.

At the heart of their argument is a belief that regular people, with no personal stake in the outcome and an average citizen’s sense of right and wrong, can offer a much-needed counterweight to the professionals tasked with enforcing the letter of the law. But is it naive to think so? . . .


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