The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries

By Suja A. Thomas
Cambridge University Press, 2016
262 pages, 6x9 softbound, or eBook
ISBN: 978-1316618035

Reviewed by Gila Hayes

Throughout April, I was immersed in a fascinating book that taught how the U.S. Constitution intended for juries to balance the power of the various branches of government. Today, we are ruled by bureaucratic mandate, judicial activism and legislation that early American juries might well have declined to enforce against their fellow citizens.

In The Missing American Jury, Suja Thomas introduces her concerns that, “The jury has essentially vanished,” showing just how few cases are decided by a jury, compared to the vision of the Founding Fathers. “The executive, the legislature, the judiciary, and the states...have caused the decline of the jury by usurping its authority,” Thomas accuses.

How? The executive branch, represented by the prosecutor, “charges, convicts, and sentences,” she explains, while the legislators write new laws and limit damages in civil litigation, and the “judiciary circumvents juries,” through motions to dismiss, summary judgments, acquittals, and judgments as a matter of law, none of which existed when the U.S. Constitution was penned, Thomas explains. Juries were intended to determine the facts or the truth of assertions from a plaintiff or a defendant, she relates. Arbitration and out of court settlements, while not bad under some circumstances, prevent juries from deciding guilt or liability. A jury cannot insist upon hearing a case that a court has dismissed, she explains, and this vests enormous power in judges.

During the Constitutional Conventions, and the first and second Continental Congresses, juries were put forward as safeguards against the oppression the colonists had recently escaped. Fearing the right of a jury trial was insufficiently assured despite Article III, Section 2 of the Constitution, these early Americans further outlined its role in the Bill of Rights’ Sixth and Seventh Amendments, and gave grand juries responsibility for indicting for serious crimes in the Fifth Amendment. These amendments are not incorporated against the states, Thomas explains later, so few non-federal issues are decided by juries.

At its most powerful, a grand jury might decline to indict a defendant “for a variety of reasons including: an unjust or unconstitutional law, an unwise law or application of law, biased or unwise allocation of prosecutorial resources, or improper governmental motivation,” Thomas explains, so it is not a big surprise that grand juries are no longer required in many states, a practice the Supreme Court condones. This is no modern phenomenon: for example, Wisconsin abolished grand juries in the 1870s. Thomas charts Supreme Court decisions about jury authority, and the trend is decidedly toward putting power in the hands of the judiciary, especially after the 1930s.

Thomas explains that with the 1930 Congressional creation of District Courts, trial by judge, not jury, greatly increased. The Supreme Court allowed the trend and in so doing, “took power from the jury and placed it in its own hands without any appreciation for the check that the jury was to play with respect to the judiciary.”

Early juries checked the power of overreaching judges, but today, we seem to accept that the judge supervises and guides the jury. Reasons for bargaining, summary judgment, and other judicial intercession today are usually related to the cost of jury trials, as well as suggestions that juries produce inaccurate results. Thomas counters that the cause of the “missing jury” is more simply a power grab, blessed by the Supreme Court for many decades. She argues for a return of power such that the American jury might become a fourth branch of government to hold the other three accountable.

Laypersons and scholars alike have mistaken juries as merely an element of the judicial branch, but Thomas argues that the mistake contributes to neutering the jury until it cannot perform its duty of protecting citizens against bad laws, biased judges or excessive executive power. She writes much of the intent of the Founders, and I thoroughly enjoyed the history lesson. “In the constitutional text, specific authority is granted to the executive, the legislature, the judiciary, the states, the criminal jury, the civil jury, and the grand jury. Moreover, limitations are placed on all of those actors, often in relationship to one another,” Thomas explains. She later writes that scholars and Supreme Court justices fail to “acknowledge such an authoritative role for criminal, civil, and grand juries.”

At one time, “juries presided over almost every serious criminal case,” Thomas writes, but today, a prosecutor charges the defendant by “information or complaint with resulting guilty pleas without any trial whatsoever,” in state and federal courts. Famed English jurist William Blackstone warned that prosecutors should not be allowed to offer reduced punishments, warning, “The right to punish belonged not to an individual but rather to society or the government that represented society,” because innocent people might be compelled to plead guilty. Today, Thomas writes that prosecutors offer reduced sentences if a defendant agrees to forego a jury trial, but may punish a defendant who insists on jury trial by charging him with far more serious crimes. This all happens outside the oversight of a jury, she complains.

These “negotiations” are unequal, Thomas observes, because of “the disparity in resources in these criminal settings, which includes the prosecutor with the state backing him, forcing the often publicly defended defendant into a plea without a finding of guilt, makes the circumstances even more unfair.” Nowadays, fully 90% of defendants accept a plea bargain: in her words, the state “almost invariably leverages a plea.” Mandatory minimum sentencing and mandatory sentencing guidelines contribute, she adds.

After cataloguing diminishing jury roles, Thomas writes that today’s juries hear far more complex litigation with evidence in far greater detail and depth than early juries, and that the courts have to manage a lot more work than two centuries ago. On the other hand, early juries were far more participative, asking their own questions and sometimes even justifying their verdicts publicly. In addition, the cost of defending one’s actions in a trial is today far greater than in those simpler times. Sometimes economics drive a settlement, she notes.

The Missing American Jury also broaches the hot-button topic of jury nullification. “The Supreme Court has refused to recognize this ‘nullification’ power,” she accuses. “Juries cannot be told that they govern in this respect, and instead they are instructed to follow the law. This misinformation significantly curtails the American jury’s power to restrain the executive, which has brought the charge, and the legislature, which has established the law.”

Thomas suggests that re-empowering the American jury would reduce distrust of government, encourage citizen involvement and make juries actually more accountable for decisions like monetary awards. She also argues for grand juries to “decide whether charges proceed against criminal defendants in state courts prior to any plea discussions by the government,” and that juries, not judges, should make the decisions at criminal and civil trials.

I was pleased when Thomas examined whether too much has changed beyond original Constitutional standards to return that authority to today’s juries. “Could the balance of authority be re-established without eliminating the existing procedures?” she asks. “For example, acquittal replaces the jury’s decision with the judge’s. And summary judgment substitutes a judge’s judgment for a jury’s. So, the rebalancing must include addressing these procedures that take away significant jury authority,” she offers.

You have to hand it to Thomas: she thinks big: recommending, “eliminating the procedures of judicial acquittal, summary judgment, and judges deciding money damages, as well as adding grand juries in states.” Her sixth chapter goes even further, imagining entirely different court structures for prosecuting crime and settling civil disputes. She compares the role of laypersons in criminal and civil matters in ten other nations, and it is quite interesting to read to what extent different governments will allow citizens a hand in meting out justice, especially in tasks like sentencing. In other nations, lay jurors almost never hear civil complaints, for example, and Thomas comments that is dangerous since a judge may rule for reasons of personal advancement–re-election or appointment to a higher court–while jurors don’t stand to enjoy any gain.

I believe I could have spent several months studying Thomas’ book, had time allowed me to follow all of the case citations she includes to support her assertions. The Missing American Jury would be great for a study group interested in expanding understanding of American justice, or perhaps a quarter-long college class dedicated to that topic. As a casual reader, I would have loved to read up on the many cases she cites. The Missing American Jury does what few books do–inspire study beyond its cover.


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