Two hundred and fifty years ago, a number of individuals convened in Philadelphia to proclaim America’s independence from Great Britain. Commonly, the story of independence is associated with taxes, particularly on tea, and the dramatic protest by colonists in Boston Harbor. However, issues raised by the colonists in the Declaration of Independence extended beyond taxation. They focused on a fundamental aspect of self-governance: the right to a trial by jury.
In 1767, the Townshend Acts introduced new taxes on colonial trade and stricter enforcement began. British authorities started prosecuting alleged smugglers, but local colonial juries often refused to convict. This resistance, known as nullification, was against what they saw as unjust laws. In response, Parliament in 1768 established tribunals that removed juries. In these courts, a single judge, appointed and paid by the Crown, decided outcomes, effectively removing public involvement in justice.
Matters grew worse when Parliament allowed certain criminal trials to be transferred to England, forcing colonists to defend themselves in distant courts. These events were fresh in the minds of the Founders who drafted the Declaration in 1776. They listed among the abuses by the king the fact that judges were made dependent on his will, colonists were deprived “in many cases, of the benefits of Trial by Jury,” and they were transported overseas for trial. These were not minor grievances; they represented the Crown’s imposition of “absolute Tyranny.”
The Constitution addressed these concerns by guaranteeing the right to trial by jury in criminal cases. The Bill of Rights reaffirmed this protection for both criminal and civil cases, and required criminal trials to occur in the state where the alleged crime happened. Having seen the dangers of judge-controlled tribunals, the Founders aimed to maintain the jury’s role as fundamental in American justice.
Despite this foundation, the modern American legal system differs significantly. Today, about 95 percent of criminal cases in the U.S. are resolved through guilty pleas rather than trials. In plea bargaining, prosecutors often threaten harsh sentences for defendants who risk going to trial or offer leniency to offenders looking to avoid accountability. This practice almost eliminates criminal trials, whether by jury or judge.
The transformation stemmed from the Supreme Court’s decisions during the rise of Richard Nixon’s “law and order” agenda. In May 1968, the Court opposed needlessly encouraging guilty pleas and jury trial waivers. Yet, within two years, it upheld plea-bargaining, even when defendants faced significantly harsher outcomes if they opted for a trial. The Court viewed promoting guilty pleas via leniency offers as permissible. A year later, it praised plea bargaining as a crucial part of justice administration.
The Founders valued jury trials for publicly examining crime evidence, protecting against false accusations, and ensuring the community was shielded from lenient sentencing for dangerous offenders. Modern plea bargains disrupt these goals.
Encouragingly, the current Supreme Court seems to be reconsidering these developments. In 2020, the Court invalidated state laws allowing non-unanimous jury verdicts in criminal cases, citing discrimination origins. In June, it took up laws allowing six-person juries rather than the traditional 12 in certain states. Importantly, some justices have begun questioning plea-bargaining practices.
Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, recently addressed the issue stating that jury trials have largely been replaced by a ‘conveyor belt of plea bargains.’
The justices acknowledged the Court’s responsibility for the situation by ignoring or condoning prosecutorial tactics coercing plea deals. This may indicate a readiness to review the criminal justice system’s long-standing assumptions.
The Founders regarded jury trials as pivotal to liberty. If modern practices deviate from this principle, the challenge is to realign with those foundational values. As we reflect on 250 years of independence, this issue merits significant consideration.
Matt Martens is a trial lawyer with the WilmerHale law firm in Washington, D.C. He has tried notable cases in both civil and criminal arenas. He is the author of “Reforming Criminal Justice.”
Copyright 2026 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.