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21 St. Louis U. Pub. L. Rev. 51 (2002)
Do Jury Trials Encourage Harsh Punishment in the United States

handle is hein.journals/stlpl21 and id is 57 raw text is: DO JURY TRIALS ENCOURAGE HARSH PUNISHMENTS IN THE
A. Introduction: The Right to Trial by Jury in the United States
Because we have a very strong federal system in the United States, many
aspects of our criminal justice system vary considerably from state to state.
Most states have a death penalty, but a few have done away with the death
penalty and a few have never had one. Some states have centralized state-wide
public defender systems to handle the cases of indigent defendants, while other
states rely heavily on the appointment of private attorneys to handle such
cases. In some jurisdictions trial judges are appointed for life, while in other
jurisdictions judges are elected to their office and must seek reelection every
few years.
But when it comes to the importance of the jury in our trial system, there
can be no uncertainty about the role of the jury. Our trial system is heavily tied
to trial by jury. While other western countries, such as England, Denmark and
Norway, use juries, they do so only when the crime is very serious, such as
when the crime is murder, rape or kidnapping. For the vast majority of
criminal cases, the defendant has no right to trial by jury.
But the United States has gone down a different path by requiring juries in
all but the most minor criminal cases. The two most important decisions
demanding that our trial system be centered on juries are Duncan v. Louisiana1
and Baldwin v. New York.2
In 1968, in Duncan v. Louisiana, the Supreme Court was faced with a state
jurisdiction-Louisiana-which did not provide defendants with a broad right
to a jury trial. Jury trials in Louisiana were restricted to those on trial for the
most serious offenses. The Court in Duncan ruled that due process demands
that states afford defendants the right to a jury trial in all cases in which there
is the possibility of a sentence in excess of a year in prison, what we call felony
offenses in the United States. Parts of Duncan read like a paean to the jury
* Professor of Law, University of Colorado, Boulder, Colorado.
1. 391 U.S. 145 (1968).
2. 399 U.S. 66 (1970).

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