Save the Jury

How to amend the Constitution to make the criminal justice system more fair.

Over the next few weeks, some of Slate’s favorite legal eagles will propose their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here’s the first crack from NYU law professor Rachel Barkow, for the benefit of another group we think of fondly—accused criminals.
Trial by Jury (Article III and the Sixth Amendment)
Defendants who wish to invoke their right to trial at the moment face an often-exorbitant price.  That’s because prosecutors often charge them with crimes that impose stiff sentences (and often mandatory ones). If they plea bargain, the sentence comes down, but if they gamble and go to trial, they usually do much more time. 
The Supreme Court has prohibited unconstitutional conditions in virtually every other context.  The state is not allowed to condition welfare benefits or permits on the relinquishment of constitutionally protected property rights or First Amendment rights, for example. But the court has taken a different path when it comes to the right to a jury trial. In this context, the court has allowed the state to condition the benefit of a lesser sentence on the relinquishment of the right to a jury trial. And it has done so for the sake of expediency.

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