Two hundred and fifty years ago, a pivotal moment occurred in Philadelphia when a group of men declared America’s independence from Great Britain. The commonly told tale often highlights taxes as the catalyst, particularly on tea, and the colonists’ iconic protest in Boston Harbor. However, the grievances expressed in the Declaration of Independence were far more complex, emphasizing the struggle for a key aspect of self-government: the right to a trial by jury.
In 1767, the Townshend Acts were introduced, imposing new taxes on colonial trade and leading to stricter enforcement. British authorities began prosecuting suspected smugglers, but colonial juries composed of locals frequently refused to convict, practicing nullification against laws they viewed as unjust. In response, Parliament, frustrated with the lack of convictions, created special tribunals in 1768 that excluded juries entirely. In these new courts, a judge appointed and paid by the Crown decided guilt or innocence, excluding public participation from the justice system.
The situation worsened as Parliament permitted the transfer of certain criminal trials to England, forcing colonists to defend themselves in distant courts. These events remained fresh in the minds of those who drafted the Declaration of Independence in 1776, listing as grievances the monarch’s control over judges, the deprivation of trial by jury, and forcing colonists overseas for trial, all central to the claim of “absolute Tyranny.”
The Constitution addressed these concerns by guaranteeing the right to a jury trial in criminal cases, further reinforced by the Bill of Rights, which provided for jury trials in civil cases and required criminal trials to occur in the state where the crime was alleged. Having faced judge-dominated tribunals, the Founders were committed to preserving the jury as a vital element of American justice.
In modern times, denying Americans the right to a jury trial is influenced significantly by plea bargaining. Today, about 95 percent of criminal cases in the United States are resolved through guilty pleas rather than trials. Prosecutors offer plea deals—threatening severe penalties for those opting for trial, or offering lenient sentences for those accepting responsibility—in a system that effectively eliminates jury trials.
This shift occurred when the Supreme Court, facing pressure from Richard Nixon’s “law and order” agenda, reversed its stance in the late 1960s. Initially forbidding practices that encouraged guilty pleas, the court conceded to plea bargaining shortly thereafter, seeing leniency offers as permissible incentives.
Despite this, recent actions by the Supreme Court indicate a possible reevaluation. In 2020, the court invalidated state laws allowing non-unanimous jury verdicts, acknowledging their discriminatory origins. Currently, laws permitting smaller juries of six persons are being reconsidered. Importantly, some justices are questioning the plea-bargaining system itself. A concurring opinion from Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, criticized coercive tactics in the plea process, hinting at a willingness to reevaluate long-standing practices.
The Founders saw jury trials as vital to liberty. If current systems have strayed from this principle, there is a growing question of whether they can realign with foundational values. As the 250th anniversary of independence prompts reflection on core values, this issue plays a critical role.
Matt Martens is a trial lawyer with WilmerHale law firm in Washington, D.C., known for trying significant civil and criminal cases. He is an award-winning author of “Reforming Criminal Justice.”