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86 Geo. Wash. L. Rev. 99 (2018)
The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges

handle is hein.journals/gwlr86 and id is 113 raw text is: The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges The Honorable Robert J. Conrad, Jr. & Katy L. Clements* ABSTRACT Federal criminal jury trials are dying. Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of cases disposed of by jury trial declined by forty-seven percent. During the same ten-year span, the portion of defendants' cases disposed of by jury trial similarly declined by almost forty percent. Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see. The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic reso- lutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury. This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s. Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate. Prior scholar- ship has blamed mandatory minimum penalties and mandatory Federal Sen- tencing Guidelines as the principal agents of the trial decline. This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results. Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a prosecutorial push during the Obama Administration to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline. By tracing trial statistics in the twenty-first century, this Article identifies new factors, largely unexamined in the vanishing trial literature, that have ar- guably driven trial numbers to even lower levels. Specifically, the authors con- tend that Booker, changes in Department of Justice policies, and other extrinsic factors outside the criminal justice system have further marginalized the existence of trials and juries. The authors lament that the sentencing hear- ing has replaced the trial as the paramount proceeding in most criminal cases and explore the consequences of plea agreements supplanting the public * United States District Judge for the Western District of North Carolina; Member of the Executive Committee of the U.S. Judicial Conference. Forthcoming Law Clerk to the Hon. Rob- ert J. Conrad, Jr.; J.D., expected May 2018, University of North Carolina School of Law; B.S., University of Texas. The views expressed herein are the authors'. We would like to thank the following people and institutions for their assistance and thoughtful comments and suggestions: Terry Leitner, T.J. Haycox, Hattie Pritchett, the U.S. Ad- ministrative Office of the Courts, Robert P. Mosteller, Richard E. Myers, Leslie A. Street, Rob & Kelly Clements, Jordan Hilton, Troy Homesley, and the attorneys practicing criminal law in the Western District of North Carolina. We would like to especially acknowledge the members of The George Washington Law Review, who have strengthened this Article, and Marc Galanter, whose seminal work initially inspired this Article. January 2018 Vol. 86 No. 1 99

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