According to Richard Oppel in today’s New York Times, just one in 40 felony cases goes to trial, down from one in twelve in the 1970s. Mandatory sentencing laws have given prosecutors the ability to threaten long prison terms that can’t be limited by juries or judges. Almost all defendants plea-bargain to avoid those sentences. As one federal judge told Oppel, “We hardly have trials anymore.”
The mandatory sentencing laws were passed by referenda or by popular votes in state legislatures. Influenced by Albert Dzur’s work, I would say that the people (using the ballot box) have chosen to remove the people (convened as jurors) from criminal law. This choice perfectly illustrates my greatest worry: that we have lost trust in both institutions and one another.
A majority of Americans distrust the criminal justice system, and they are mainly concerned that the guilty will go free. Crime remains high, by comparative standards. People are afraid of it, in part because of media sensationalism. And attitudes toward crime are infused with race. Thus majorities vote to impose simple, understandable rules on the whole system, like “Three Strikes” in California. One ironic result is to transform criminal cases from transparent public events (full of explicit moral rhetoric) into bargaining sessions managed behind the scenes by lawyers. That is a recipe for even lower trust, which encourages even more draconian sentencing laws. Meanwhile, at least some American are angry because we have incarcerated 2.29 million of our people, with terrible effects for their lives and communities and high costs to society. People (like me) who are angry from that direction get outvoted but contribute to low confidence.
The old system for ensuring that the public trusted the law (dating to Anglo Saxon times) was to empanel members of the public to hear actual cases. We could go back to that system. But there is no groundswell for such a remedy because Americans trust one another about as little as they trust major institutions, like the courts.
The results are very bad: not only is our incarceration rate unconscionable, not only do innocent people have reasons to plea-bargain to avoid draconian sentences, but democracy is distorted. We the people are wisest when we gather to discuss with others and when we focus on complex cases in their particular contexts. Then our everyday experience, diversity of backgrounds, and human sensitivities improve our thinking. We the people are least wise when we make simplistic decisions in the ballot box, without expertise and under the influence of advertising campaigns. But because we distrust the government and ourselves, we are substituting our most foolish mode of thought for our wisest one.