Tuesday, March 13, 2012

Go To Trial and Crash the System

The New York Times ran an op-ed piece this past Sunday entitled "Go to Trial: Crash the Justice System". The article describes one woman's idea to organize thousands of people charged with a crime to not "play the game" and plead out, but instead to go to trial and "crash the system". As anyone who has worked in the criminal defense industry knows, the system depends on the plea bargain. There are not enough judges, juries, prosecutors, defenders, or other resources for everyone to go to trial. Indeed, over 90% of all criminal cases end in plea bargain. That, of course, is related to the unique threat and promise system of justice in America: a person charged is often threatened with stiffer penalties if he or she chooses to exercise the Constitutional Right to trial and the fear is a real one in a system where the Government generally has the better hand in terms of resources. But what would happen if those accused decided simultaneously to "break the house" and go to trial?
This is the question Susan Burton posed. Ms. Burton became a crack cocaine addict after her five year old son was run over by the police. For fifteen years she was in the revolving door of arrest, incarceration, release with no resources, and rearrest that is the hallmark of the American criminal justice system. But Ms. Burton asked Michelle Alexander, the author of the article and a new book entitled "The New Jim Crow: Mass Incarceration in the Age of Colorblindness”, what would happen if the people accused refused to play along? Here is an excerpt (full article here):
On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”

Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

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