Jury trials, both civil and criminal, have been on the decline for a while. In Jury Trials Vanish, and Justice is Served, Benjamin Weiser takes a close look at how this trend has impacted courts in the Southern District of New York. Weiser notes that the Southern District held only 50 criminal jury trials in 2015, the lowest number of criminal trials since 2004.

One of the reasons cited for the decline in the number of trials is the sentencing guidelines.

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increases use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.

In 2014, the Hon. Jed S. Rakoff of the Southern District of New York wrote Why Innocent People Plead Guilty,  an article about the practice of plea bargaining in the United States. The concern is always that innocent people will plead guilty, for a variety of reasons, in order to avoid a trial. There are no accurate statistics for how often this happens.

The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.

As Judge Rakoff observes, that there does not seem to be the political will to eliminate mandatory minimum sentencing guidelines. Rakoff suggests that an alternate approach to the problem might be to involve judges in the plea bargaining process. He notes that this is prohibited in the federal courts, but suggests a system whereby the use of magistrates or special masters could enable the plea discussion to take place without involving the judge who would be assigned to the case.