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How Can We Fix the Constitution?


Save the Jury

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

Conrad Murray
Conrad Murray listens to the verdict against him in his manslaughter trial. Should the Constitution be amended to be more fair to criminal defendants?

Photo by Al Seib/Getty Images.

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.

The Constitution, however, is not a document about expediency. So Article III and the Sixth Amendment (the two places where the guarantee to trial by jury is found) should be amended to include:

Prosecutors may not seek higher penalties, nor may judges impose higher penalties, when defendants exercise their right to a jury trial. 

This would effectively abolish plea bargaining and force judges, prosecutors, and legislators to think more seriously about which crimes really merit the cost of a trial, because trial rates would certainly go up. It would also return the jury to its much-needed role as a check on the system—a role that it is currently barely serving, given that more than 95 percent of all criminal cases are resolved by pleas and never make it to trial.

Excessive Punishment (the Eighth Amendment)

The Eighth Amendment currently states that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It should be clear to anyone from the text that this provision imposes a proportionality requirement on punishments, including terms of incarceration. But not every justice has signed on to that view, and even the ones who have agreed that the Constitution requires that a punishment must be proportionate to the relevant offense have been reluctant to second-guess legislative judgments about appropriate sentences. And so, for example, the court has accepted a 25-years-to-life sentence for stealing three golf clubs and a life sentence for a defendant who committed three low-level thefts of property valued at less than $230 in total.  

The United States now leads the entire world in incarceration by a mile, with especially high rates of imprisonment for people of color—yet politicians perennially fear being accused of being soft on crime. In this dysfunctional environment, the Constitution must provide a counter-majoritarian check and inject some rationality. So, I propose this amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor excessive terms of incarceration, nor any other excessive form of criminal punishment, nor cruel and unusual punishment inflicted.

I would also require the legislature to provide evidence for any decision to increase the sentencing range for a given crime, to counter the sound-bite politics of crime and to pay more attention to the disproportionate impact our sentencing laws have had on communities of color: 

Legislators must provide evidence establishing that lesser punishments will not satisfy penological objectives and showing that they considered the racial impact of any proposed criminal law or sentence. 

Finally, because criminal sentences are often set with the worst cases in mind but end up being imposed in cases where they are disproportionate to the culpability of the offender, I would add the following as well:

Mandatory punishments are prohibited. Courts must have discretion to alter punishments based on individual circumstances.

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