The Trial Lottery

50 Pages Posted: 17 Jan 2020

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Stephen E. Henderson

University of Oklahoma - College of Law

Darryl K. Brown

University of Virginia School of Law

Date Written: January 17, 2020

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

Suggested Citation

Brennan-Marquez, Kiel and Henderson, Stephen E. and Brown, Darryl K., The Trial Lottery (January 17, 2020). Virginia Public Law and Legal Theory Research Paper No. 2019-03. Available at SSRN: https://ssrn.com/abstract=3521342

Kiel Brennan-Marquez

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

Stephen E. Henderson

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)

HOME PAGE: http://www.law.ou.edu/directory/stephen-e-henderson

Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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