SCOTUS should heed Gorsuch and require juries for petty crimes

All eyes are on the jury these days. Last week, 12 New Yorkers convicted former Republican president Donald Trump in state court of falsifying records. In nearby federal court, 12 other ordinary New Yorkers will soon decide the fate of Democratic Senator Robert Menendez, who is charged with corruption, bribery and obstruction of justice.

Regardless of how one feels about the outcome of a particular case, the role of jurors in determining guilt and protecting the innocent is fundamental to the American understanding of justice.

Now imagine being wrongly accused of a crime that could result in six months in prison, large fines, and possibly pretrial detention, loss of employment, possible deportation (if you are a foreign national), loss of housing benefits, loss of professional licenses, and sex offender registration.

You might think, “They can’t convict me unless they convince at least 12 people in the community that I’m guilty.” After all, the Sixth Amendment guarantees the right to a jury “in all criminal prosecutions,” and Article III of the Constitution provides that “the trial of all crimes, except in cases of impeachment, shall be by jury.”

But imagine being told that you don’t have the right to a jury trial after all, because the crime you committed isn’t serious enough to be considered a “crime” or a “criminal charge.”

Most people, including those who believe the Constitution should be enforced as written, would agree that this doesn’t make much sense. That said, in our federal system and in most states, a person accused of a crime punishable by up to six months in prison is tried by a judge, not a jury.

The Supreme Court created the so-called “misdemeanor exception” to jury rights in a non-binding “decree” in the mid-1800s and has reflexively repeated it without further analysis ever since. Separately Claimed Recent articles have argued that this exception is not based on the language, history, or rationale of the Sixth or Third Amendments.

The lack of juries in so-called “minor” cases should be of concern to everyone. The misdemeanor system is broad. 10 million state indictments, 60,000 federal indictments Every year progressives say,Justice for petty crimes“The system hits the most vulnerable people hardest and unnecessarily traps non-dangerous people in the prison net. Conservatives, on the other hand, Manhattan Institute They criticized the system as bloated, having weak mental health requirements for convictions and often being created by unelected government officials rather than by Parliament.

The Framers of the Constitution had a solution to this anti-democratic abuse of power by ill-advised, overzealous, or corrupt government officials: juries.

last week, Justice Neil Gorsuch issued a scathing opinion. He waxed poetic about the importance of juries. Urging the Court to take up the case of a Florida man convicted by a six-person jury, Justice Gorsuch argued that it was unjust to “send someone to prison for eight years on the basis of six opinions.” Reflecting a fundamentalist view of the Constitution, Justice Gorsuch maintained that “the right to a trial by jury is as meaningful today as it was at the time of our nation’s founding, and it should still offer the same protections for personal liberty.” He also lamented the Court’s role in encouraging a “gradual ‘erosion’ of the right to jury trial.”

We entirely agree. But if Gorsuch believes what he has written about juries and the importance of enforcing the Constitution to its letter, he and the other justices should adopt the more problematic routine practice of rejecting jury trials in “minor” criminal prosecutions.

Yes, the jury system is costly, especially to states. However, some states have state laws that provide a broader right to a jury trial than the federal Constitution provides.And Gorsuch wrote in his opinion: Claims Jury rights mean the same thing in federal and state courts. Perhaps taking jury rights more seriously in misdemeanor cases would encourage prosecutors to focus more on important cases and treat them with the seriousness they deserve, instead of trivializing them as misdemeanors or pursuing frivolous cases that should never have been filed. Like selling hot dogs without a license..

Perhaps making jury service more routine in everyday cases is exactly the kind of civic ritual our country needs more of in these polarized times. In any case, Justice Antonin Scalia, who replaced Gorsuch on the Supreme Court, Recorded about 25 years agoJuries have “never been efficient, but always free.”

Andrea Roth is professor at the University of California, Berkeley School of Law and the Barry Tarlow Chancellor’s Professor of Criminal Justice there. J.D. King is professor of law at Rutgers University.