The Unconstitutional Convictions You Don't Know About - WSJ op-ed
By Clark Neily and Somil Trivedi
Mr. Neily is senior vice president for legal studies at the Cato Institute. Mr. Trivedi is a senior staff attorney at the American Civil Liberties Union.
Four recent trials have left Americans divided and skeptical over whether our criminal-justice system actually produces just outcomes. The conviction of three men for the murder of Ahmaud Arbery, the acquittal of Kyle Rittenhouse, the conviction of Jussie Smollett for falsely reporting a hate crime, and the trial of Elizabeth Holmes for allegedly lying to investors have played out in much different ways, with legitimately controversial outcomes in the first three cases. But these prosecutions share one favorable aspect: All were decided by juries, a development that regrettably has become highly unusual in our court system.
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Yet today jury trials are rare. More than 95% of criminal convictions come from guilty pleas, meaning that criminal jury trials, though constitutionally prescribed, seldom happen. The Supreme Court noted in Lafler v. Cooper (2012) that “criminal justice today is for the most part a system of pleas, not a system of trials.” That imperils Americans’ constitutional rights by exposing them to coercive pressure to plead guilty, along with other forms of police and prosecutorial abuse that regularly produce false convictions.
To be sure, juries don’t always get it right. Jurors are human and fallible. The past month also saw a wave of innocent people exonerated after false convictions by juries. These include Kevin Strickland, a black man wrongfully imprisoned in Missouri for more than 40 years after being convicted by an all-white jury, and two of the Muslim men convicted of killing Malcolm X, potentially as cover for misconduct by the federal government. Juries are also only as good as the information and guidance they receive. In the rare cases that go to trial, prosecutors too frequently withhold evidence favorable to the defense, manipulate witnesses, and make improper arguments to the jury. Unfortunately, some judges—many of whom served as prosecutors before taking the bench—aren’t as vigilant as they should be.
Juries are also to some extent stuck with the law they’re given. Those dismayed by the Rittenhouse verdict, for instance, should consider focusing their ire on Wisconsin’s self-defense law rather than the jury that enforced it. On the flip side, two of Ahmaud Arbery’s pursuers were convicted of a crime called “felony murder,” whereby a defendant is guilty of murder when a death occurs in the commission of some other felony, even if the death was both unintended and unforeseeable. While both of us believe those defendants should never have followed Arbery in the first place and that his killing was a terrible wrong, we also believe felony murder is illegitimate and potentially unconstitutional.
Yet despite the drawbacks of trial by jury, the alternative—the ad hoc practice called plea bargaining—is far worse. In particular, coercive plea bargaining artificially lowers the cost of obtaining a criminal conviction. Prosecutors can induce defendants to plead guilty by bringing more—and more-serious—charges than are truly warranted, particularly when combined with pretrial detention... Plea bargaining can also hide police misconduct from public scrutiny by ensuring that rights-violating officers rarely take the stand. Then there’s the horrifying reality that innocent people are sometimes pressured into pleading guilty to crimes.
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We need more jury trials because they prevent the government from unilaterally convicting those it has accused of crimes and ensure that ordinary citizens get to make the call about who deserves to be punished. There’s nothing more American than that.
https://www.wsj.com/articles/unconstitutional-convictions-rittenhouse-arbery-smollett-jury-trial-jurors-plea-bargain-injustice-11639339630 (subscription)
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