Jury Trials Still Scarce

At the Founding, juries decided all but the most minor criminal cases. But by 1962, jury trials accounted for only 8.2% of cases tried in federal court. And by 2013, that number had more than halved, dropping to 3.6%. The numbers in state courts are even more bleak—and, in most cases, come on top of the absence of grand juries. And in civil cases, as will surprise absolutely no one, juries decided only 5.5% of federal cases in 1962—and 0.8% by 2013. 

There are lots of explanations, obvious and otherwise, for these trends. But whereas conventional narratives of the jury’s demise have emphasized the inefficiency, cost, incompetence, and inaccuracy of the jury, the real culprits, Thomas argues, are each of the branches of government, which have “seized the domain of the jury.” As Thomas explains, “the executive charges, convicts, and sentences, despite juries indicting, sentencing, and convicting in the past. The legislature can set damages, although only the jury historically had that power. The judiciary circumvents juries by resolving cases via mechanisms such as the motion to dismiss, summary judgment, judgment of acquittal, and judgment as a matter of law, procedures nonexistent at our Constitution’s founding.” And all of this is on top of what Thomas consciously excludes from her discussion, the move (sanctioned, if not affirmatively encouraged, by all three branches) toward non-trial settlement—whether through plea bargains in the criminal context or alternative dispute resolution in the civil context.

From a review of Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016) by Steve Vladeck at JOTWELL.

The facts

Criminal Juries

Grand juries, particularly in federal cases, as I've recounted in a previous post, do virtually nothing to protect individual rights and are an anachronism.

Contrary to the quoted material above, both trials in general, and jury trials in particular, are much more common in state criminal cases than in federal criminal cases. This is largely as a result of tough mandatory minimum sentences and sentencing guidelines that federal prosecutors can utilize and because federal prosecutors have more control over which cases to prosecute and which to leave to state prosecutors (taking only the stronger cases, most of the time). The fact that the penalty for seeking a jury trial is so high is what leads to very high plea bargaining rates in federal cases. Criminal jury trials are all but dead as a result in federal court, but are alive, if not well, in state court.

For example, in 2006 in Colorado, in state courts there were 1,776 criminal or quasi-criminal jury trials (plus about 35 quasi-criminal parental rights termination jury trials). In state court, two-thirds of traffic cases that go to trial were tried by juries, 69% of misdemeanor trials were before juries, and 97% of felony trials were before juries. In federal court, there were 22 criminal jury trials, just 59% of criminal trials were to juries, and the percentage of cases going to trial is lower than in state court (at least for felonies).

About 2% of state felony cases and 1.25% of misdemeanor cases in Colorado in 2006 went to trial, with 2% of state felony cases and about 0.8% of state misdemeanor cases resolved with jury trials. About 0.34% of state traffic cases go to trial, with about 0.22% resolved by jury trials.  There are roughly the same number of traffic cases and limited jurisdiction civil cases filed each year in state courts in Colorado, but there were 386 jury trials in traffic cases and just 17 in limited jurisdiction civil cases in 2006.

Nationwide, only about 6% of state criminal cases and 3% of federal criminal cases are not plea bargained, and some of the rest of dismissed prior to trial.

Less than 2% of criminal jury trials take place in federal court, but about 9% of people in prison at any given time in the United States were convicted in federal court for violating federal criminal laws, and less than 1% of death sentences are federal. The proportion of criminal cases brought in federal court is lower than 9%, however, because misdemeanor and petty offense prosecutions are disproportionately brought in state courts and most criminal prosecutions involve misdemeanors and petty offenses.

Civil Juries

The situation in civil cases, which 15% of all jury trials are conducted, is more comparable between the federal and state system. There were just 17 limited jurisdiction civil trials in state court (v. 1236 bench trials and 3485 small claims bench trials) with jury trials making up just 1% of state court trials and where trials themselves are very rare.  About 54% of civil trials in federal court (43 jury trials and 36 bench trials) and 50% civil trials in general jurisdiction state courts were to juries (277 jury trials and 280 bench trials), with about 75% in tort cases) - both of these categories of cases are more likely to go to trial but trials are still rare in civil cases across the board.

About 1% of general jurisdiction court civil cases went to trial in Colorado's state courts in 2006, so less than 0.5% of them were resolved in jury trials. About 0.7% of limited jurisdiction court civil cases in Colorado's state courts went to trial and only 0.01% of them were resolved in jury trials.

Federal jury trials are more common as a share of federal civil actions than in state court, as roughly 97% of all civil cases are filed in state courts and 89% of the civil cases filed in federal court were bankruptcies, a typical year, so just 0.3% of the non-bankruptcy civil cases in the state are filed in federal court, yet 13% of civil jury trials are conducted in federal court. But, this is largely a function of debt collection cases and routine minor tort cases which are unlikely to go to trial, being brought predominantly in state courts. Jury trial rates in cases of comparable significance in federal court settle at fairly comparable rates to those in state courts, which makes sense because the procedural framework for civil cases is almost identical in state and federal courts.

On the civil side, the issues involved with jury trials are quite different. Much of what makes civil procedure inefficient and hard to reform can ultimately be traced back to the fact that key decisions have to be deferred to a final trial before a jury that is unlikely to ever actually happen.

* * * *

Still, in the face of a blatant case of jury nullification in the prosecution of an armed militia that had engaged in treason (although the charges brought were less serious), it is hard to be too attached to the jury trial as an instrument of justice.

PORTLAND, Ore. — The leaders of an armed group who seized a national wildlife refuge in rural Oregon were acquitted Thursday in the 41-day standoff that brought new attention to a long-running dispute over control of federal lands in the U.S. West. A jury found brothers Ammon and Ryan Bundy not guilty a firearm in a federal facility and conspiring to impede federal workers from their jobs at the Malheur National Wildlife Refuge, 300 miles southeast of Portland where the trial took place. Five co-defendants also were tried one or both of the charges. . . . 

The armed occupiers were allowed to come and go for several weeks as authorities tried to avoid bloodshed seen in past standoffs. . . . The group began occupying the bird sanctuary in remote southeastern Oregon on Jan. 2. They objected to prison sentences handed down to Dwight and Steven Hammond, two local ranchers convicted of setting fires. They demanded the government free the father and son and relinquish control of public lands to local officials. Ammon Bundy gave frequent news conferences and the group used social media in a mostly unsuccessful effort to get others to join them. The Bundys and other key figures were arrested in a Jan. 26 traffic stop outside the refuge that ended with police fatally shooting Robert “LaVoy” Finicum, an occupation spokesman. Most occupiers left after his death, but four holdouts remained until Feb. 11, when they surrendered after a lengthy negotiation. 

At trial, the case was seemingly open-and-shut. There was no dispute the group seized the refuge, established armed patrols and vetted those who visited. “Ladies and gentlemen, this case is not a whodunit,” Assistant U.S. Attorney Ethan Knight said in his closing argument, arguing that the group decided to take over a federal workplace that didn’t belong to them. 

On technical grounds, the defendants said they never discussed stopping individual workers from accessing their offices but merely wanted the land and the buildings. On emotional grounds, Ammon Bundy and other defendants argued that the takeover was an act of civil disobedience against an out-of-control federal government that has crippled the rural West. Federal prosecutors took two weeks to present their case, finishing with a display of more than 30 guns seized after the standoff. An FBI agent testified that 16,636 live rounds and nearly 1,700 spent casings were found. 

Bundy testified in his defense, spending three days amplifying his belief that government overreach is destroying Western communities that rely on the land. He said the plan was to take ownership of the refuge by occupying it for a period of time and then turn it over to local officials to use as they saw fit. Bundy also testified that the occupiers carried guns because they would have been arrested immediately otherwise and to protect themselves against possible government attack. Ryan Bundy, who acted his own attorney, did not testify.

Authorities had charged 26 occupiers with conspiracy. Eleven pleaded guilty, and another had the charge dropped. Seven defendants chose not to be tried at this time. Their trial is scheduled to begin Feb. 14.

Despite the fact that the trial was held in Portland, the jury pool drew from all over the state and not just this coastal urban center.