Are Federal Bench Trials in Criminal Cases Constitutional?

Bench trials (trial to a judge with no jury) constitute about half of all criminal trials in the federal courts and in the neighborhood of 15% of the felony trials. Yet they are in flat contradiction to the express language of the Constitution.

The constitutional text could not be more explicit:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Art. III, § 2, clause 3.

This occurs in Article III, which defines“the judicial Power of the United States.” As an instrument establishing a limited government, the Constitution flatly foreclosed the possibility of federal criminal trials by combat or by ordeal, as argued in my post of 12/15/14. It also forecloses trial by a judge sitting without a jury.

This may be an unwise constitutional provision. It might be very expensive to hire the number of federal judges and prosecutors and to build the new courtrooms that would be needed to afford jury trials to all those accused of federal crimes. There is a strong tendency that stretches from constitutional law scholars to barely literate internet trolls and from the left to the right of the political spectrum to honor the Constitution by reading it to conform, as much as one can manage, to one's own political preferences. It is worth reminding ourselves that not everything in the document ratified in 1787-1790 passes even the lowest standards for fundamental justice. The fugitive slave clause is only the most obvious example. Equal representation in the Senate, that egregiously anti-democratic structural provision, was even placed by the founding fathers beyond the possibility of any but unanimous state amendment. (Perhaps those fathers did not take the non-amendment provision too seriously, having themselves just ignored a very similar provision in the constitutional regime under which they labored. See my post of 10/4/14, “Was the US Constitution Unconstitutional?”)

For my own part, I am wary of consigning the jury provision unconditionally to the dust bin of bad eighteenth century ideas for the following reason. The crowding of federal judicial calendars is in large part a function of our having so many federal criminal statutes. Should we not be willing to pay for a proper criminal process for those accused of any and all those acts we choose as a nation to criminalize?

I will admit that, although I have a generally high opinion of criminal juries, I do not think that bench trials are currently a great blot upon the justice of our criminal justice system. Plea bargaining, however, my ultimate target, is a blot of enormous dimensions. It is with that on the horizon that I would argue that we should only criminalize what we can afford to reach judgment upon justly.

1. Patton v. United States

Wise or unwise, the Supreme Court has read the Article III jury requirement out of the Constitution. “There is nothing in the Constitution to prevent an accused from choosing to have his fate tried before a judge without a jury” Adams v United States ex rel McCann, 317 U.S. 269, 275 (1942). Adams here relied ultimately on the interpretive precedent of Patton v. United States 281 U.S. 276, 298 (1930). (To be fair to the members of the Adams Court, Justices Douglas, Black, and especially Murphy there expressed serious doubts about Patton in dissent.)

Patton was authored by Justice Sutherland, remembered by history as one of the “four horseman of reaction” for his penchant for finding New Deal programs unconstitutional by reading “due process” to constitutionalize a laissez faire theory of freedom of contract. (Patton is often said to have been “unanimous,” but the new Chief Justice Hughes did not participate, Justice Sanford died before the date of decision, and Justices Holmes, Brandeis, and Stone concurred only in the result of this case involving 11 jurors by consent after one juror became ill late in the trial. So the reasoning always cited as the ultimate authority for the proposition that bench trials are constitutional became a matter of record through the votes of only four justices, and is arguably easily distinguished.)

The reason that Patton's holding is understood to be decisive for the bench trial issue is that Sutherland accepted the defense contention that eleven persons could not constitute an Article III jury. “A constitutional jury means twelve men . . .” at 292.

It is of some importance for the precedential force of Patton whether we are to read “men” here as “ungendered.” Sutherland was not as bad on women's rights as you might expect, having supported the Nineteenth Amendment. Yet his interpretive methodology would make the gender-neutral move difficult for him. He drew heavily upon common law history in establishing the “substantial and essential” jury dozen. That same history would be at least as strong for the exclusion of jurywomen. Maleness, so far as history would show, was, like twelveness, one of the “common law elements . . . embedded in the constitutional provisions.” Had Sutherland both the imagination and the ideological flexibility to muse about this, he might have concluded that the interpretation of “jury” ought not be so tightly constrained by common law precedents. After all, “jury of eleven” like “jury of men and women” were phrases that would have been perfectly intelligible to, even if unprecedented for, late eighteenth century speakers of American English. Subjects or citizens who were not property owners had also been excluded from jury service by the common law tradition. If women and the unpropertied can constitutionally be jurors without defendant waiver, then the common law tradition does not so tightly constrain the Article III “jury” as Sutherland contended, and the defendant could have lost this 11 juror appeal without a decision licensing the federal courts to conduct bench trials.

2. Sutherland's Chief Historical Arguments

In an earlier draft I itemized and criticized eight arguments used by Sutherland to support his contention that the jury requirement of Article III is waivable. I then found a law review article that does a fine job of detailing just how far out of the mainstream of prior Article III interpretation Patton was and how shoddy were its historical arguments. See Stephen A. Siegel, “The Constitution on Trial: Article III's Juror Trial Provision, Originalism, and the Problem of Motivated Reasoning,” 52 Santa Clar L Rev. 373 (2012). "Akhil Amar is restrained when he says "None of the arguments in Patton v. United States survives close scrutiny." Siegel at 417, Akhil Amar, "The Bill of Rights as a Constitution," 100 Yale L. J.1131 at 1197.

As Siegel exhibits, Sutherland throughout places the burden of proof on the natural reading of the provision. For Sutherland it counts heavily against this “structural” or “jurisdictional” interpretation that the eighteenth century drafters, pamphleteers, journalists, and debaters, never explicitly said that the Article III jury requirement was unwaivable. That none of these sources of quotations ever breathed the possibility that the jury provision could be waived was, apparently, unworthy of interpretive notice.

Sutherland brushes aside the fact that defendants could not in general waive the jury requirement in England. This, he asserts, was the result of specifically English conditions, in particular that the father's felony conviction cut off his heir from the estate. Sutherland fails to ask whether criminal convictions in the United States might ever have an affect on third parties and so support non-waivability of juries for the same general reason as in England. Removing the father from the farm or the master from the shop would affect the life prospects of wife and children and often of apprentices, journeymen, suppliers and customers. Conceivably Blackstone might not have considered these plebeian concerns as having the same weight as the loss to his heir of the lord's estate, but it is difficult to imagine Ben Franklin's concurring in that assessment. In fact, the American colonists had their own historically specific reasons for being pro-jury and for being suspicious of judges, often tools of the crown.

At a higher level of generality, Sutherland argued that there was, in the United States, no rational basis at all for any jury requirement other than a waivable right. He develops this through quotations from the dissent of Judge Aldrich in Dickinson v. United States, 159 Fed. 801 (1^st Cir. 1908). Aldrich ridiculed “the idea that the constitutional safeguards in question were in any sense established as something necessary to protect the state or the community from the supposed danger that accused parties would waive away the interest which the government has in their liberties, and go to jail.” Dickenson at 820, Patton at 295. “There is not now, and never was, any practical danger of that. Such a theory, at least in its application to modern American conditions, is based more upon useless fiction than upon reason.” Dickenson at 820 , Patton at 296.

Perhaps it is fiction to suppose that anyone would ever waive trial rights preferring the relative safety of incarceration to the tender mercies of his enemies on the streets or out of inability to cope with the increasingly unfulfilled needs of an impoverished family. It is fiction of the sort that Dickens might write, which, to be sure, may well have seemed quite useless to Aldrich, Sutherland, and their social circles. Sutherland reads the text of document of the eighteenth century, a much more communitarian time, through the lens of early twentieth century economic and political individualism.

We now know that the great majority of accused, in fact, waive their trial rights altogether, and that among them are a disturbing number who are innocent of the crime pleaded to. The national community has its own interest, quite independent of the interest of the accused, in convicting only the guilty, indeed in convicting only those who can be shown to be guilty beyond a reasonable doubt in a process that both is, and appears to be, fair. Convicting the innocent not only has the obvious human costs for the immediate and the secondary victims, but is a security negative. It undermines confidence in the criminal justice system and, arguably, decreases crime control. “The funny thing is - on the outside, I was an honest man, straight as an arrow. I had to come to prison to be a crook." Andy Dufresne - The Shawshank Redemption.

Aldrich and Sutherland were just wrong. There is a reason to protect the state and community with something stronger than waivable rights. The plain meaning of the jury requirement of Article III is not so crazy that courts must come up with an alternative reading.

3. The Judiciary Act Argument

Sutherland calls attention to sections 9 and 12 of the Judiciary Act of 1789, which make use of the same “shall be by jury” language that is found in the Article III provision with which we are concerned. He notes that “many who had participated in the convention which framed the Constitution” were members of this first Congress.(at 300-301) That much is right. The Senate on any day it sat in 1789 would have had a majority or near majority of signers of the Constitution. The House's representation of Conventioneers stood at about 15%, although one was a non-signer. Madison was in the House, however, which probably means that effective framer presence was about equal in the two chambers.

Constitutional interpretation has often drawn upon evidence from the First Congress. This is justified on a framers' intent theory, on a ratifiers' intent theory, and, of course, on a framers' and ratifiers' intent theory. The great majority in both houses participated in the ratification process of their respective states. Actions of the First Congress are also relevant for a theory looking to the meaning of the text for fluent speakers of the enactment period, although Congressional doings and historical materials are not much more relevant than other contemporaneous writings.

Sometimes the records of the early Congress are pretty good evidence of how key Constitutional language was then understood. The reference to religion as a desideratum for education in the Northwest Territories Act, for example, surely has some bearing on what “establishment” was understood to mean.

Had the First Congress passed an act setting out the procedures for bench trials upon defendant waiver, that would have been the basis for a serious interpretive argument. Congress did nothing of the sort, however, for over a hundred years. It is not anything the First Congress did that supports Sutherland's waivable right theory, it is that the Supreme Court, several years after the First Congress ended, started to interpret the Section 2 and Section 9 provisions in terms of waivable rights. Perhaps a rather tortuous precedent argument can be put together out of these materials, but not a serious argument relying on the fact that members of the First Congress were framers, ratifiers, or fluent speakers of their era.

                4.  Careful Scrutiny and Intentional Misdrafting

I cannot resist going into a little detail on one additional part of Sutherland's excursion into history. The argument is so lame that I will quote it verbatim to avoid the suspicion that I am mischaracterizing. It addresses the “imperative” nature of the Article III language in light of his observation that the contemporaneous literature did not discuss non-waivabilty. “This is all the more remarkable when we recall the minute scrutiny to which every provision of the proposed Constitution was subjected. The reasonable inference is that the concern of the framers of the Constitution was to make clear that the right of trial by jury should remain inviolable, to which end no language was deemed too imperative.”

In other words the restriction on the federal courts that “the trial of all crimes . . . shall be by jury” was not really intended to prohibit trial of crimes by means other than jury, but was an intentional overwriting to reinforce the inviolability of the defendant's right to a jury. This right, of inviolability so strong that no language could be too imperative, was nonetheless waivable. Sutherland apparently believed intentional misdrafting for emphasis was not only consistent with, but apparently a product of, that “minute scrutiny” to which the provision, like all provisions, was subjected. One might have naively thought that minute scrutiny must have revealed the possibility that the provision might be read as written, that is as a prohibition of federal non-jury trials. Couldn't some wording less susceptible to misreading have been found to set out (even with emphasis) a waivable right?

                5.  The Argument From Guilty Pleas

Bench trials in criminal were apparently unknown or very nearly unknown in 1789 with the exception of minor offenses and the exception of the state of Maryland. See Siegel at 419, n. 263. See generally, Susan C. Towne, “The Historical Origins of Bench Trials for Serious Crime,” 26 Am. J. Legal Hist. 123, (1982). Guilty pleas, however, had long existed, although they may never have been very common. This historical fact gave rise to a Sutherland argument that deserves some special attention because it remains seductive to this day. If an accused can waive trial altogether, isn't it a matter of logic that he can also waive each of the particular protections and rights of a trial, including the jury? Isn't it a metaphysical truth that the whole includes the part? For a touch of the real world, recall that the right to a jury is one of the specific rights that a defendant is now required to renounce, personally, voluntarily, and knowingly, in open court for a plea of guilty to be accepted by the judge.

Remaining at this level of pure theory, the problem with this argument is that it proves too much. The right to be tried by a jury has the lesser included right not to be tried by combat. This is the point at which you might want to take a look at my prior post. I would hazard that Sutherland would not have contended that the fact that an accused can plead guilty, and hence waive a jury trial, implies that anyone could waive his or her way into a trial by combat. If Sutherland would concede this point, however, his argument from guilty pleas falls away.

This is an issue to which we will need to return when we get to plea bargaining. As far as bench trials are concerned, we could rest with the pre-Patton understanding that accepting judgment without trial was one thing, but, if a trial took place in a federal court, Article III required that it be a jury trial.

             6.   Conclusion on Bench Trials and Interpretive Lessons to Be Drawn

Sutherland's historical arguments at some points manipulate the historical evidence so egregiously that it is hard to resist suspecting him of dishonesty. Siegel generously suggests that Sutherland sincerely believed in the probity of his arguments, but that they are a paradigm example of “motivated reasoning.” This sort of reasoning, under the influence of ideology or other dominant purposes or beliefs, controls the evidence sought, the way it is interpreted, the weight it is given, and the conclusions finally drawn. Influenced by the increasing problem in the twenties of crowded court dockets, Sutherland was motivated to change the prior understanding of the Article III jury requirement to make it waivable.

Siegel does not fault Sutherland for his conclusion that the Article III jury requirement is waivable. Sutherland's interpretive mistake, Siegel thinks, was in using originalist interpretive methods in reaching this conclusion – methods that required him to make such a mess of the history. Sutherland should have adopted a method of constitutional construction that brought the current needs of the courts directly to bear on the Article III provision, following the progressive jurisprudence of Holmes and Pound. Siegel: “we must develop public law jurisprudences that embrace and grow from, rather than deny, the observation that the infusion of contemporary values into constitutional law is inevitable.” at 452. 
 
I have no desire to defend Sutherland's framer's intent version of originalism. I do, however, think it is important that what was ratified, and so has the stamp of legitimacy, was a text. Like any text it was composed of specific words and phrases. Contemporary values will and should be infused into constitutional law when a judge applies “due process,” “cruel and unusual punishments” or “just compensation.” That is what the text requires. 

Precedent aside, a judge must give her best judgment of what process is due. The Constitution does not list permissible processes and was not written in terms of “procedures accepted in 1789 as due process.” 
 
When it comes, however, to interpretation of “neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years,” there being no normative terms, there is no point at which contemporary values can be infused. “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury” similarly is not subject to contemporary values on the question whether some crimes can be tried other than by jury. If the provision is a bad one, it should be amended. An argument could be made that “jury” was a legal term of art with a normative dimension – that what would count as a jury was an evolving concept with ingredients of fairness and peer representation. There is, however, no good argument that “all” was quasi-normative.

So, I am happy to endorse Siegel's critique of Sutherland's historical analysis, and I also agree with Siegel in thinking that attempts to divine what was in the minds of the drafters or ratifiers either with respect to intent or expectation is liable to produce interpretations highly correlated with the interpreters own political predilections. I think Siegel goes astray, however, in thinking that a sound democratic political theory is compatible with a Constitution that can “grow” in conflict with its own enacted meaning. For this reason I think Siegel is as wrong as Sutherland in concluding that federal criminal bench trials are constitutional.

(For a more detailed, and more theoretical, discussion of the sort of textualist interpretive methodology I suggest here – a methodology that keeps normative terms normative, rather than converting them into descriptions, see my post of 6/17/14 “A Testualist Approach to Legal Interpretation.”)