March 12, 2012 1:22PM

Go to Trial and Crash the System?

Yesterday, Law Professor Michelle Alexander wrote an op‐​ed for the New York Times with the title, “Go to Trial: Crash the Justice System.” Here’s an excerpt:

AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.

Her odyssey began when a Los Angeles police cruiser ran over and killed her 5‐​year‐​old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the “war on drugs,” and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug‐​related offenses. Every time she was released, she found herself trapped in an under‐​caste, subject to legal discrimination in employment and housing. …

I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea‐​bargain when charged with a crime?

“Yes, I’m serious,” she flatly replied.

I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross‐​examine witnesses and to the assistance of counsel.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three‐​strikes laws; the result is a dramatic power shift, from judges to prosecutors.

Read the whole thing. I am glad to see this attention to the deplorable plea bargaining system that has developed here in the USA. Susan Burton and Professor Alexander pose an interesting thought experiment, but it is not realistic. The government has enormous leverage over everyone’s liberty. By offering straight probation to some and threatening others with additional charges and more prison time, the persons accused would be unable to hold the line–individuals will take the deals offered and surrender their right to a trial.

If we take the Constitution seriously, the only options open to us are (1) scale back the criminal codes–especially the drug laws; (2) spend the money that will be necessary to conduct the trials; (3) amend the Constitution.

For more background, go here (pdf).