The Trial Lottery

Abstract

The American Founders believed all serious crimes should be tried by jury. The jury was, after all, “the heart and lungs . . . of our liberties,” intended to serve as the “circuitbreaker in the State’s machinery of justice.” Times change, of course, but few are happy that today plea bargaining is the system of criminal justice, with jury trials relegated to an almost inconsequential role. We propose to restore some measure of the Framers’ constitutional vision through a novel mechanism: a trial lottery. In short, a small percentage of cases that plead out should be randomly selected for jury trial, using the terms of the plea as an upper limit on punishment. This would have three benefits: counteracting asymmetries in plea bargaining; ‘auditing’ the law enforcement process, revealing information about how police investigate and how prosecutors charge; and revitalizing the role of jurors, lawyers, and judges in criminal adjudication. After theorizing these benefits, we close by offering a handful of proposals for implementation.

Keywords: jury trials, criminal procedure, adjudication, lottery, random, disappearing trial