The Plea Jury is the title and subject of a new (draft) paper by Laura Appleman, a professor of law at Willamette and blogger at The Faculty Lounge, which goes into some length about the failure of the plea bargaining system and how it should be replaced by this innovation.

The plea jury, essentially, would be a jury of lay persons who would “preside” over the plea bargaining process. It would make the determination of the voluntariness of the plea, decide whether to accept the plea and listen to the defendant’s allocution, ultimately settling on the punishment to be imposed, if the recommended sentence is unsatisfactory.

This, according to Appleman, while not being a pancea, would substantially reduce the problems with the plea bargaining process as they currently stand.

I spot some problems with this right at the outset, but I’m not willing to completely dismiss it out of hand. The problems, of course, are the greater participation of the “public” into a mechanism where their encroachment is already great. The plea bargain is essentially a contract between the State and the defendant. Her proposal of the plea jury would inject a section of the public into that contract, as an ultimate arbiter. The rights of the defendant would yet again take second place to this retributive theory and the primacy of the public.

She also makes much of the jury’s ability to discern whether the defendant is showing honest remorse, does accept responsibility and so on. I would normally have said that she is yet another lawprof with no practical experience, but it seems that she was an appellate public defender for 5 years before making the jump, so I’m sure she’s had some not-so-insubstantial contact with the justice system.

On the whole, the idea isn’t terrible. There is some appeal to the community aspect of it: the general public would get a better sense of the criminal justice system, they would have a greater idea of the types of sentences imposed and perhaps be exposed to some of the coercive aspects of the system. But as with all things, this would be a double-edged sword. The “public” has the potential to be reactionary, is most likely to be untrained in the law and is apt to place emphasis on things that have no role in the criminal justice system. And all of those potential negatives would further hurt the defendant in this process.

The paper does “acknowledge” that defendants would take a hit in this plea jury system, but doesn’t explore it at all, dismissing it in two short paragraphs:

Incorporating a plea jury makes sense as a means to protect public interest, since it protects the collective jury right from obsolescence, provides the guilty plea with a theoretical framework, and removes the screen from the behind-the-scene machinations of plea agreements. But enforcing the public interest can potentially infringe upon the rights of the defendant, or result in competing definitions of rights. Moreover, using a plea jury may result in more extreme charges and/or higher sentences for the offender in question, depending on how much behind-the-scenes bargaining occurred before the plea was presented to the plea jury.

Again, however, introducing sunshine to the guilty plea process, even if it does produce less desirable results for some defendants, is on the whole a good thing. In the long run, involving the public in the criminal justice process, as it used to be, demystifies both courts and the ways criminal offenders are judged and sentenced. Hopefully, a greater understanding of the criminal justice system would ultimately lead to fewer demands for.

In the criminal justice system, the rights of the defendant should be paramount.

You can read the paper for yourself and determine how you feel about it. If you’re like me, then you will notice that much of the paper is devoted to fixing problems that arise not by the defendant’s doing. Many of the ills this aims to cure – lack of involvement, coercive atmosphere, lack of reintroduction into the community, lack of confidence in the fairness and impartiality – are indictments not of the defendant, but rather the players involved in the justice system.

The complaint is with the prosecutors who strong-arm defendants into taking absurd plea offers; with the defense attorneys who are complicit; with judges who permit such an atmosphere to persist, who are willing to give the police the benefit of the doubt at the expense of the Fourth Amendment; with appellate judges who permit the existence of the “trial tax”; the legislators who act “tough on crime” without any understanding of the implications of it; the media who look only for a soundbite and do no actual reporting.

So forgive me if I’m a little skeptical of a proposed system where the only player who has to sacrifice further to correct it is the only one who is not a cog in the machinery. If the system is broken, fix the parts that make up the system, not the product that goes through it.

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