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Book: Juries robbed of power by federal government, states

University of Illinois at Urbana-Champaign

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IMAGE: Despite their significant presence in the Constitution, juries have largely disappeared from the U.S. legal system, according to a recently published book by University of Illinois law professor Suja A.... view more

Credit: Photo by L. Brian Stauffer

CHAMPAIGN, Ill. -- A new book by a University of Illinois expert on juries examines why criminal, civil and grand juries have largely disappeared from the U.S. legal system, and what effect their enfeebled role is having.

Despite their significant presence in the Constitution, juries have been stripped of their fundamental constitutional role by the federal government and the states, argues Suja A. Thomas, a professor of law at Illinois, in a recently published book.

"Most people think of the jury as an entity that decides lots and lots of cases," she said. "But what the public doesn't know is that juries decide 1 to 4 percent of criminal cases and less than 1 percent of civil cases. Even though it's a huge part of the public's popular conception of the courts and our legal system, the jury is actually a small part of our government."

The book, titled "The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries," explores how the jury's authority has been weakened and how it can be restored to its rightful position as a coequal branch of government, Thomas said.

"I've characterized the jury as another branch of government, but the jury is not actually considered coequal with other parts of government, even though there are three provisions in the Constitution - the criminal jury provision, the civil jury provision and the grand jury provision - that grant juries a lot of power," she said.

"The Constitution gives significant authority to juries. So it's just like any other part of government, except the jury's authority has been taken away by the other branches of government."

According to the book, prosecutors, legislators and judges have arrogated the jury's authority - the primary reason that juries decide very few cases.

"I think that's bad because, first, the founders wanted juries to have significant authority to check other parts of the government, and that is not happening right now," Thomas said. "Second, people can criticize juries, but they can also criticize other parts of the government for the exact same problems. For example, you could say juries have bias. Well, so do other parts of government. And third, the jury doesn't have the same type of bias that these other parts of government have.

"For all of these reasons, it's troublesome that juries are missing in America."

The book also argues decisions made by juries should be preferred over determinations by other governmental bodies.

"For example, the Securities and Exchange Commission often determines whether an individual pays damages to the government in insider trading cases instead of a jury deciding," she said. "The SEC accuses and then decides. That's wholly problematic because you have the government as both the accuser and the decider."

Another problematic shift of power concerns laws that impose mandatory minimum sentences, which provide prosecutors with great leverage. In exacting harsher criminal penalties, prosecutors force criminal defendants into plea bargains, thereby eliminating jury trials, Thomas said.

"The prosecutor dangles a lesser charge for a defendant who will take a plea. With the certainty of a harsher penalty if the defendant is convicted by a jury on the original charge, the defendant essentially cannot turn down the plea to the charge imposing a lesser sentence," she said. "Plea bargaining was never intended for the prosecutor to be able to coerce defendants in this way. You know that there are some innocent people going to jail because of pleas. Which isn't to say that a jury can't get it wrong, either. But that system still has many checks on it. Plea bargaining has fewer."

On the civil side, by ordering summary judgment, judges are able to dispose of some cases - factually intensive civil cases such as ones alleging discrimination in employment - without ever sending them to a jury.

"A judge can say 'not enough evidence' and then just dismiss the case," Thomas said. "That certainly wasn't what was intended by our founders, and it's certainly not good for our democratic system."

Also, by capping monetary awards, legislatures have robbed juries of their power to award damages.

"And then if the jury actually decides, we can have the judge reject the verdict and find for the losing party," she said. "Also, judges can change the award of damages. Instead of, say, $200,000 in damages for emotional distress, the judge can unilaterally reduce it to $20,000 or the plaintiff must take a new trial. That's problematic. We say we have a jury, but then we don't let cases go to the jury or in some circumstances we second-guess juries."

Increasing the number of jury trials would increase time and money in the legal system, but trial by jury "was never meant to be efficient," Thomas said.

"There's this concept that efficiency must become embedded in our judicial system," she said. "Well, efficiency was never part of the Constitution. Neither was it part of the jury. It's supposed to be a system that checked the overzealous prosecution of crime and other transgressions. And there are certainly other parts of our government that aren't efficient. Congress isn't very efficient. But we have them because they are a part of our government and they check other parts of our government."

The book is published by Cambridge University Press.

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