the plea
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TH AMENDMENT BY THE COURTHOUSE CROWD by Albert W. Alschuler & Andrew G. Deiss
276[From The University of Chicago Law Review, Volume 61, Number 3, Summer 1994, "A Brief History of the Criminal Jury in the United States," Albert W. Alschuler & Andrew G. Deiss, pages 921 - 928; Republished with authors' permission.]

John Langbein has asked whether hippopotamuses are to be found in New York City. The answer is yes. Some live in the Bronx Zoo.277 Langbein also has asked whether jury trials are to be found in America. Again the answer is yes. The courts provide specimens for public examination each year. There are even enough jury trials to keep a cable television network on the air.

Nevertheless, one statistic dominates any realistic discussion of criminal justice in America today. Ninety-three percent of the defendants convicted of felonies in state courts plead guilty.278 The percentage of convictions by guilty plea is still higher in misdemeanor cases.279 Moreover, nearly half of the convictions in the cases that go to trial are the products of trials before judges sitting without juries.280

The Constitution declares that "[t]he Trial of all Crimes, except in Cases of Impeachment; shall be by Jury. . . ."281 It also declares that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ."282 Langbein suggests that Americans should replace the word "all" in these two constitutional provisions with the words "virtually none." Our system of criminal dispute resolution differs enormously from the one that the Sixth Amendment was designed to preserve.283

At the time the Sixth Amendment was enacted, bench trials in serious criminal cases were unknown. Nonjury trials became permissible in the federal courts only in 1930.284 Indeed, the Supreme Court declared in 1874 that a defendant could not "be tried in any other manner than by a jury of twelve men, although he consent in open court to be tried by a jury of eleven men."285

Even in 1791, a defendant could plead guilty. Far from encouraging guilty pleas in felony cases, however, the courts actively discouraged them. Shortly before the American Revolution, Blackstone's Commentaries observed that courts were "very backward in receiving and recording [a guilty plea] . . . and will generally advise the prisoner to retract it. . . ."286 Statements declaring the reluctance of courts to accept guilty pleas appeared in American treatises throughout the nineteenth century.287

John Beattie surveyed English court records at about the time of the American Constitution and concluded, "Virtually every prisoner charged with a felony insisted on taking his trial, with the obvious support and encouragement of the court. There was no plea bargaining in felony cases in the eighteenth century."288

The earliest reported American guilty-plea case reveals that practices on the American side of the Atlantic were no different. In Massachusetts in 1804, a twenty-year-old black man was accused of raping a thirteen-year-old white girl, breaking her head with a stone, and throwing her body into the water, thereby causing her death. When the defendant pleaded guilty to indictments for rape and murder:

The Court informed him of the consequence of his plea, and that he was under no legal or moral obligation to plead guilty; but that he had a right to deny the several charges, and put the government to the proof of them. He would not retract his pleas; whereupon the Court told him that they would allow him a reasonable time to consider of what had been said to him: and remanded him to prison. They directed the clerk not to record his pleas, at present.289

When the defendant was returned to the courtroom, he again pleaded guilty:

Upon which the Court examined, under oath, the sheriff, the jailer, and the justice [who had conducted the preliminary examination of the defendant] as to the sanity of the prisoner; and whether there had not been tampering with him, either by promises, persuasions, or hopes of pardon, if he would plead guilty. On a very full inquiry, nothing of that kind appearing, the prisoner was again remanded, and the clerk directed to record the plea on both indictments.290

The report concluded that the defendant "has since been executed."291 In the only other American decision prior to the Civil War to discuss the guilty plea extensively, the persuasion of the court was successful, and the defendant withdrew his plea.292

Raymond Moley's 1928 study, The Vanishing Jury293, reported the percentage of felony convictions "by jury" and "by confession" in New York State for an eighty-eight year period beginning in 1839. At the outset of this period, only twenty-five percent of the state's felony convictions were by guilty plea. In Manhattan and Brooklyn, the figure was even smaller, fifteen percent. Moley charted a gradual increase in this figure to about eighty percent statewide by the turn of the century, then to ninety percent by 1926.294 In the years following Moley's study, the figure continued to grow. It is ninety-six percent today.295

As cases of plea bargaining began to reach appellate courts in the decades following the Civil War, the overwhelming reaction was one of disapproval.296 Nevertheless, plea bargaining apparently became the dominant method of resolving even serious cases in urban America at the end of the nineteenth century and the beginning of the twentieth -- a time when the bondsman, the ward politician, the newspaper reporter, the jailer, and the fixer exerted an everyday influence on the administration of criminal justice.297 Various crime commissions demonstrated in the 1920s that plea bargaining had become common, and many of the commissions indicated that the use of this route to conviction had increased in the immediately preceding decades. For the first time, the practice came to the attention of the public. Again the general reaction-of scholars, the press, and the crime commissions themselves -- was disapproval.298 The Supreme Court did not uphold the constitutionality of plea-bargained waivers of the right to jury trial until 1970.299

American criminal procedure has become an administrative process rather than the adjudicative process it once was. Nevertheless, when jury trial was routine, it was a reasonably summary procedure.300 As recently as the 1890s, a felony court apparently could conduct a half-dozen jury trials in a single day.301

The intervening century has seen a proliferation of procedures in contested cases and, as a result, an inability to bring many contested cases to trial. In 1990, the longest criminal jury trial in American history came to an end two years and nine months after it began. This trial did not involve financial machinations of great complexity or an army of white collar defendants; the defendants were members of a preschool staff charged with sexually abusing children at their school. Of the two defendants whose cases reached the jury, one had spent five years in pretrial detention and the other two years. The preliminary hearing in the case had lasted eighteen months. The trial jury heard 124 witnesses; and after paring down the charges, the judge permitted sixty-five allegations of molestation and conspiracy to go to the jury. The jury acquitted one defendant but failed to reach agreement on the other. When a retrial later the same year produced a second hung jury, the prosecutor dismissed all remaining charges. The McMartin Preschool case ruined some lives and cost the taxpayers over $14 million.302

Although this case was the product of atypical blunders,303 over-proceduralization has infected the American jury trial. Prolonged, privacy-invading jury selection procedures, cumbersome rules of evidence, the repetitive cross-examination of witnesses, courtroom battles of experts (who sometimes are called "saxophones" because they play tunes for those who pay them), jury instructions that all the studies tell us jurors do not understand, and more, have made trials inaccessible for all but a small minority of defendants. Lawyers extol our trial procedures on Law Day and at bicentennial celebrations. They tell us later that the courts would be swamped if we used them. "Practical necessity" requires pressing the overwhelming majority of defendants to abandon their day in court.

Robert H. recently spent six months in an Atlanta jail without any formal charges filed against him and without ever appearing in court or seeing a lawyer. On the day that he met the public defender who represented him, the public defender advised him to plead guilty. Robert's was one of thirty felony cases in which this public defender made court appearances that day -- and one of more than five hundred cases that she handled during the year. Robert followed her advice.

The authorities later realized that Robert H. was not guilty of the charge to which he had pleaded guilty; through a bureaucratic error, they had confused him with someone else. Despite Robert H.'s innocence, however, the public defender may not have given him bad advice. She told him that, if he pleaded guilty, he could go home that day; and if he wanted a trial, he could have one -- after waiting in jail for perhaps another year.304 Someone should tell Robert H. about America's recent celebration of the Bicentennial of the Bill of Rights.

If Paul Lewis Hayes can be located in a Kentucky prison, someone should tell him about the Bicentennial too. Hayes was a repeat offender charged with uttering a forged $88 check. The prosecutor offered to permit him to plead guilty in exchange for the recommendation of a five-year sentence. Hayes replied that he was innocent and that he wanted a jury trial. The prosecutor then carried out a threat that he had made during the negotiations. He returned to the grand jury and obtained an indictment under the Kentucky Habitual Criminal Act. Hayes was convicted at trial, and the court imposed the life sentence that the Habitual Criminal Act demanded. In Bordenkircher v Hayes, the United States Supreme Court upheld the penalty that Hayes had incurred by exercising his Sixth Amendment right.305

The Constitution told Paul Hayes that he had a right to jury trial. The courthouse regulars (including the Supreme Court) told him that the exercise of this right was a crime. It was in fact a more serious crime than uttering a forged check. Uttering a forged check was "worth" only five years' imprisonment. The crime of standing trial before a jury was "worth" imprisonment for life.


The American right to jury trial now resembles the hippopotamus in New York City. As John Langbein observes, it's a goner. Unpropertied white men, African-Americans, the members of other minority groups, and women have taken their places in the concert hall, but the orchestra has disbanded. The protagonists on both sides of the nineteenth-century battle over the authority of judge and jury to resolve questions of law have suffered resounding defeat. Today prosecutors are the judges of law and fact.

Jefferson thought the jury an even more vital instrument of democracy than the popular election of legislators.306 Tocqueville called the jury a form of sovereignty of the people and a school in which citizens learn their rights.307 Only a shadow of this communitarian institution has survived into the urbanized America of the late twentieth century.

One of us recently received a summons for jury duty, then spent a day with dozens of his fellow citizens in a jury room with two television sets playing on different channels. One of our fellow citizens, a taxi driver, reported that he had purchased a dress shirt for the occasion. Neither this taxi driver nor anyone else, however, was called from the jury room to offer his wisdom on matters of importance to the community. Perhaps some of the people who waited all day in this jury room ended the experience with the sense of gratification (or inspiration) to which a citizen who participates in public affairs is entitled. The final sentence of the information sheet that we received upon reporting for duty reminded us that we should. It read:

Please be assured that even if you do not serve on a trial, just by being available you have made it necessary for all parties appearing in court to revert to a bench trial, settle by agreement, plea bargain, voluntarily dismiss, etc., thereby saving the court's time, and making it possible for our system of justice to work.308


276 For the most part, this Section is derived from Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum L Rev 1 (1979). Although the Section adds some new data, we have included it mostly to round out the story of the American criminal jury in the nineteenth and twentieth centuries and to place the other Sections of this article in perspective. Readers interested in a fuller scholarly development should consult the 1979 article.

277 John H. Langbein, On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial, 15 Harv J L & Pub Pol 119, 121 (1992).

278 Richard Solari, National Judicial Reporting Program, 1988 47, Table 4.2a (US Dept of Justice, Bureau of Justice Statistics, 1992). In the seventy-five largest counties, ninety-four percent of all felony convictions are by plea. Id at Table 4.2b.

279 See, for example, Malcolm Feeley, The Process is the Punishment 9 (Russell Sage, 1979) (Although every defendant in the lower criminal court of New Haven, Connecticut, had a right to jury trial, not a single defendant in a sample of 1640 cases invoked the right.).

280 Patrick A. Langan and John M. Dawson, Felony Sentences in State Courts, 1988 1 (US Dept of Justice, Bureau of Justice Statistics, 1990).

281 US Const, Art III, §2.

282 US Const, Amend VI.

283 See Langbein, 15 Harv J L & Pub Pol at 119.20 (cited in note 277).

284 See Potton v United States, 281 US 276, 298-99 (1930).

285 Insurance Co. v Morse, 87 US 445, 451 (1874). See also Thompson v Utah, 170 US 343, 349 (1898).

286 William M. Blackstone, 4 Commentaries *329. More than any other law book, the Commentaries shaped American legal consciousness. One year before the Declaration of Independence, Edmund Burke remarked in Parliament that nearly as many copies of Blackstone had been sold on the American as on the English side of the Atlantic. Edmund Burke, Speech on Conciliation with the Colonies, in 2 Works of Edmund Burke at 99, 125 (cited in note 42).

287 See, for example, John Frederick Archbold, Pleading and Evidence in Criminal Cases 73-74 (New York, 1st Am ed 1824); John C. B. Davis, The Massachusetts Justice: A Treatise upon the Powers and Duties of Justices of the Peace 232 (Warren Lazell, 1847). See also Hallinger v Davis, 146 US 314, 324 (1892) ("The [trial] court refrained from at once accepting [the defendant's] plea of guilty, assigned him counsel, and twice adjourned, for a period of several days, in order that he might be fully advised of the truth, force and effect of his plea of guilty."); Green v Commonwealth, 94 Mass (12 Allen) 155, 175-76 (1866) (noting the "well settled practice" of receiving guilty pleas with "great reluctance & caution").

288 J. M. Beattie, Crime and the Courts in England, 1660-1800 336-37 (Princeton, 1986). See also id at 446-47.

289 Commonwealth v Battis, 1 Mass (1 Williams) 95, 95-96 (1804) (emphasis omitted).

290 Id at 96.

291 Id.

292 See United States v Dixon, 1 DC (1 Cranch) Cir Ct Rpts 414 (DC 1807).

293 2 S Cal L Rev 97 (1928).

294 Id at 108

295 New York State Division of Criminal Justice Services, 1990 Crime and Justice Annual Report 162 (Bureau of Criminal Justice Statistical Services, 1991).

296 See Alschuler, 79 Colum L Rev at 19-24 (cited in note 276).

297 Id at 24-26.

298 Id at 26.32.

299 See Brady v United States, 397 US 742, 753 (1970) ("[W]e cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary."); Santobello v New York, 404 US 257, 260 (1971) ("If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.").

300 See Langbein, 45 U Chi L Rev 263 (cited in note 1) (describing English practice); Alschuler, 79 Colum L Rev at 40-41 (cited in note 276).

301 Friedman, Crime and Punishment at 245 (cited in note 8) (describing practice in Leon County, Florida, but noting that trials in Almeda County, California, were longer). Compare Hyman and Tarrant, American Trial Jury History at 26 (cited in note 3) (reporting that in colonial Virginia "felony trials were held in one day").

302 Lois Timnick, Buckey Jury Deadlocks; Mistrial is Declared; McMartin: D.A Reiner Says He Won't Seek a Third Trial. Longest Criminal Case in History Comes to an End, LA Times A1 (July 28, 1990); Bruce Buursma, LA Child Abuse Case Ends in Acquittals, Chi Trib Cl (Jan 19, 1990).

303 See Paul Eberle and Shirley Eberle, The Abuse of Innocence: The McMartin Pre-school Trial (Prometheus, 1993).

304 Monroe Freedman, For the Poor, Criminal Defense a Matter of Third World Justice, Legal Times 34 (Feb 11, 1991).

305 434 US 357, 364-65 (1978).

306 See text accompanying note 51.

307 See text accompanying notes 45-47.

308 Juror Information, Circuit Court of Cook County, Doc No CCL-0524 (1993).


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