These days, everyone is paying attention to juries. Twelve citizens of New York last week found former Republican President Donald Trump guilty in state court of falsifying records. Just down the street in federal court, twelve other ordinary New Yorkers will soon decide the fate of Democratic Senator Robert Menendez in his trial on charges of corruption, bribery, and obstruction of justice.
Whatever you might think of the outcomes of any particular case, the role of the jury in assigning blame or protecting the innocent is fundamental to the American understanding of justice.
Now imagine being falsely accused of a crime that carries a potential six-month jail sentence, a heavy fine, and other consequences, such as pretrial detention, loss of employment, potential deportation (for non-citizens), loss of housing benefits, loss of an occupational license, or sex-offender registration.
“At least,” you might say to yourself, “they can’t convict me unless they convince twelve people from the community that I’m guilty.” After all, the Sixth Amendment guarantees a right to jury “in all criminal prosecutions,” and Article III of the Constitution requires that “the trial of all crimes, except in cases of impeachment, shall be by jury.”
But now imagine being told that you have no right to a jury trial after all, because your alleged offense is not serious enough to be considered a “crime” or a “criminal prosecution.”
Most people, presumably including anyone who thinks the Constitution’s language should be enforced as written, would agree that makes little sense. Nonetheless, in the federal system and in most states, a person accused of a crime punishable by as much as six months in jail is tried by a judge, rather than by a jury.
The Supreme Court created this so-called “petty offense exception” to the jury right in nonbinding “dictum” in the mid-1800s, and has reflexively repeated it without further analysis since. Yet as we each have separately argued in recent articles, this exception has no grounding in the text, history, or rationale underlying the Sixth Amendment or Article III.
The denial of a jury in so-called “petty” cases should concern everyone. The misdemeanor system is vast, with over ten million state prosecutions and 60,000 federal prosecutions each year. Progressives have attacked the “misdemeanor justice” system as affecting vulnerable populations most harshly and needlessly ensnaring non-dangerous people in the carceral web. Meanwhile, the conservative Manhattan Institute has critiqued the same system as bloated, having watered-down requirements of mental state for conviction, and often created by unelected agency officials rather than legislatures.
The Framers had a solution for such antidemocratic overreach by out-of-touch, overzealous, or corrupted government officials: the jury.
Last week, Justice Neil Gorsuch published a strongly worded opinion waxing poetic about the importance of juries. In urging the court to take up the case of a Florida man convicted by a six-person jury, Justice Gorsuch argued that being sent “to prison for eight years on the say of just six people” was unjust. Reflecting his originalist view of the Constitution, Justice Gorsuch argued that “the right to trial by jury should mean no less today, and afford no fewer protections for individual liberty, than it did at the nation’s founding.” He also lamented the court’s role in facilitating the “gradual ‘erosion’ of the jury trial right.”
We couldn’t agree more. But if Gorsuch believes what he wrote about juries, and about the importance of enforcing the Constitution as written, he and the rest of the justices should take up the more problematic and routine practice of denying jury trials in “petty” criminal prosecutions.
Yes, juries are costly, particularly for states. But several states provide a broader right to trial by jury under state law than the federal Constitution provides. And Gorsuch, writing for the Court, has insisted that the jury right means the same in federal as in state court. Perhaps taking the jury right more seriously in minor crimes will lead prosecutors to focus more on cases that matter, and treat them with the seriousness they deserve, rather than papering them down to misdemeanors or pursuing petty cases that should never have been brought, like selling hot dogs without a permit.
Perhaps making jury service more routine in everyday cases is precisely the sort of civic ritual our country needs more of in these polarized times. In any event, as Justice Antonin Scalia, whom Gorsuch replaced on the court, noted almost 25 years ago, the jury “has never been efficient; but it has always been free.”
Andrea Roth a is a professor and Barry Tarlow Chancellor’s Chair in Criminal Justice at the University of California Berkeley School of Law. J.D. King is a professor of law at Rutgers University.