We have talked about the role of juries in a civil litigation, but haven’t yet given much thought to criminal procedure, and what juries do. Although the systems are parallel in many ways, the stakes are always higher in a criminal case, which gives every procedure more import. Perhaps the title of this post should have been “The Lack of …” because in reality, jurors see such a small percentage of criminal cases that they don’t play much of a role at all. Instead, the process is controlled by a prosecutor for the most part.
Until you or a loved one is involved in the criminal justice system, you probably don’t give much thought to the discretion of prosecutors. But with the recent suicide of internet activist Aaron Swartz, people have been paying more attention. Swartz was accused of hacking into MIT’s computer network and using his laptop to download thousands of academic articles. The prosecutor charged him with several crimes, and had just offered him a deal that would require him to plead guilty in exchange for a six month sentence. Then next day Swartz committed suicide.
As this article points out, Swartz may have had many other issues that led to his suicide. But the story has brought attention to the dirty little “secret” of the justice system: the prosecutor has almost limitless discretion in deciding who to charge with a crime, and what crimes to charge him with. I call this discretion a “secret” because no one really pays attention, although it isn’t hidden.
There are lots of good reasons to give the prosecutor discretion, not the least of which is that he or she is representing all of us, the “people,” in the courtroom. So we want the prosecutor to have the power to do the job. And to get the “bad guys.” But every once in a while a case comes a long where we may disagree with the prosecutor, and it causes us to revisit how our system works. The article linked above is a really thoughtful look at what some academics are saying about how we could change the system to avoid abuse of discretion. Most of the suggestions relate to the role of juries, more specifically, giving every day people a greater say in other parts of the process.
An interesting example is the plea bargain. We will learn that plea bargains are negotiated between the defendant (really his lawyer) and the prosecutor, with almost no checks. The judge does have to approve the plea, but judges have a conflict of interest that might create a bias: they need to move cases, so they want plea bargains to be reached. So some researchers have suggested that jurors should have the right to weigh in on plea bargains. Interesting, but complicated idea.
What do you think about the role of prosecutors? Should jurors do more? Do any of the suggestions in the article make sense?
One Comment
Yujing Cai posted on February 20, 2013 at 7:23 pm
Last week when I was checking my mails, I surprisingly discovered a letter that asks me to fulfill my jury obligation.Then my friend told me that this was a mistake, as International students don’t have the right to be a jury.
I understand how if it is very common and troubling to be a jury, people may feel resistant. However, I would be really excited if I could use my judgement and be part of this legal system.Meanwhile I will probably be a little scared, as my decision can maybe change the life of people involved.
With more powers of the jury, the case is more likely to be fair. Even lack professional knowledge, the juries can still have the ability to process the information they have and make judgement. Think if the people involved are our friends or families. Don’t we want the judgement to be as fair as possible? If the jury’s judgement is different from the judge’s judgement, there must be a reason that the court can further examine.
The term fair may be vague. Some may argue that the decision of juries may be mostly driven on emotions and subjections. However a judgement is never solely based on written law. It is people’s perception of the law and ethics. Since the perception and ethics have no absolutely correct answer, it is helpful to have large group of unrelated people to judge.