All Defendants in Washington, DC Should Have the Right to a Jury

The right to trial by jury is a hallmark of our criminal justice system. Article III, Section 2 of the Constitution provides that the trial of all crimes, except impeachment, shall be by jury. The Sixth Amendment guarantees the accused a speedy and public trial by an impartial jury. This mandate is violated across the country, and Washington, DC is a particularly egregious example.

In the nation’s capital, a defendant has no right to a jury trial unless charged with an offense carrying a maximum above 180 days in jail or a $1,000 fine.¹ It is not difficult to imagine the destruction 180 days can do to someone’s life — a job lost, housing lost, and a well-documented set of collateral consequences that follow a conviction.

It compounds. The DC Code allows a person to be charged with up to four counts each carrying a maximum of 180 days, with no right to a jury, and to be sentenced consecutively if convicted at a bench trial. A defendant charged only with misdemeanors can receive up to 720 days in jail and a $4,000 fine without ever facing a jury of her peers.

This is by design

Almost every misdemeanor in Washington, DC carries a maximum of 180 days and a $1,000 fine. The purpose is plainly to deprive defendants of a jury. Where a misdemeanor happens to carry slightly more — threats, for instance — the United States Attorney’s Office charges “attempted threats” instead, specifically to avoid the jury right. Jones v. United States, 124 A.3d 127 (2015). Adding “attempt” to a DC misdemeanor makes the maximum exactly 180 days — precisely the amount required to deny a jury.²

The DC Council has occasionally tried to address this, including a statute granting a jury right for assault on a police officer. Prosecutors responded by charging simple assault instead, even where the alleged victim was an officer. There is no rule against it, and the DC Court of Appeals has upheld it. Coleman v. United States, 194 A.3d 915 (2018).

Why prosecutors avoid juries

Bench trials are more conducive to mass incarceration. Jury trials take longer and give an individual case exponentially more attention. Selecting a jury takes time. The court must carefully consider what the jury may and may not hear. Instructions must be formulated. The jury does not know whether the defendant is currently in custody, and the court must ensure he is never seen in a jumpsuit. In a bench trial, prosecutors need not give an opening statement explaining what their evidence will show; in a jury trial, it is mandatory.

In a bench trial the judge is both referee and fact-finder, which is problematic for several reasons. The judge knows the defendant’s entire criminal history — highly prejudicial information the law expects him to set aside when reaching a verdict. The judge also knows about evidence suppressed because police or prosecutors violated the rules or the Constitution. A jury would never learn of a coerced confession. The judge has full knowledge of it and is expected to pretend otherwise.

Juries acquit more than judges

There is scholarship on this. Where judge and jury disagreed about guilt or innocence, the jury was more lenient in 87% of cases; where disagreement arose from a hung jury, the jury was more lenient in 79%.³

It is far easier to continue mass incarceration when the right to a jury is limited as much as possible. Juries are treated as clogs in a well-oiled machine that has locked up people en masse. It is only human to begin seeing defendants as numbers when tens of thousands pass through a courthouse. It matters that a jury with fresh eyes can look at a case, deliberate, and reach a fair verdict.

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1. DC Code § 16–705(b).
2. DC Code § 22–1803.
3. Amy Farrell & Daniel Givelber, Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt, 100 J. Crim. L. & Criminology 1549 (2010).

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