Go to Trial, Crash the System

Go to Trial, Crash the System

 

I found this piece recently, discussing the prospect of what would happen if everyone accused of a crime demanded a trial:

[I]n 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 [trial] 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.

The author ponders what would happen if people accused of crimes all (or mostly all) refused plea bargains:

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.

The idea is similar to the James Mills book "One Just Man" where an idealistic attorney convinces New York prisoners to refuse all plea bargains.  The result brings New York City to its knees.

In theory, I think at least the math is correct:  In Gwinnett County, GA, for example, the DA's Office where I used to work indicts about 5000 cases per year.  (I'm rounding off to make the math easy).  There are 10 judges to hear these cases, meaning each judge gets 500 new feloniy cases per year.  In order to give every accused defendant a trial, a judge would need to dispose of 10 felony jury trials per week.  Rarely can a judge close even two felony trials in a single week.  Most felony trials take most of the week.  That means a judge might be able to try 50 or 60 of his 500 felony cases per year, if he ignored every other type of work (divorce, child custody, contract disputes, personal injury cases, real estate disputes, etc.)  The 90+% of cases that didn't get tried would remain on this docket while new felony cases keep coming in. 

In reality, it isn't as simple as it looks.  "Cases" means "people."  So for the 90% or more of cases that don't get tried, that represents people whose cases are still pending.  They may be in jail without bail (or with a bail they can't make), or they may be free on bond with a felony case hanging over their head.  Either way, they might want to 'get it over with" by pleading guilty rather than awaiting their turn for a trial.

Who really wins and loses?  If a person awaiting trial on Aggravated Assault facing 20 years in prison negotiates a plea of guilty with 5 years of probation, is that person really a victim of an overburdened system?  Or is that person using an overburdened system to his advantage?  Perhaps the DA wanted prison time, but is forced to negotiate plea deals to probation.  So who is really "forced" in this situation?  Is it the priosecutor?  Is it the defense?  And who is doing the forcing?

We have the justice system we are willing to pay for.  In my example of Gwinnett County, the voters seem content with a justice system that can have trials for about 5% of the felony cases.  The remaining 95% must be negotiated.   That's about normal.  If the voters want more cases to be tried rather than negotiated, they can spend more tax dollars for more judges, prosecutors, jails, jailers, courtrooms, etc.    Whether that works in favor of the defense or the prosecution is really a matter of perspective and each particular case.  Each side wants more resources when it would benefit their iside.  Each side is happy to use the lack of resources to apply pressure to the other side when it benefits them to do so. 

Finally, the hypothetical idea of a prisoner's "strike" against plea bargains faces what is known as the "prisoner's dilemma." I.e., each prisoner will do what is best for them, rather than prisoners as a whole.  (This is why multi-defendant cases often have defendants who cut deals to become witnesses for the State.  "The first to squeal gets the deal.")   So while a widespread prisoner "strike" would crash the system, it's not anymore likely to happen now than when James Mills wrote "One Just Man" almost 40 years ago. 

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Fifty Years After Gideon v. Wainwright . . .

Fifty Years After Gideon v. Wainwright . . .

March 18, 2013, is the 50th anniversary of the famous Gideon v. Wainright case in which the Supreme Court ruled that the U.S. Constitution entitled criminally accused individuals to the assistance of an attorney.  It is the case that required the creation of indigent defense systems to cover every criminal courtroom in the United States.  But like many idealistic ideas that came out of the 1960's, reality has proven much less idealistic than imagined. 

Jacqueline Dixon, President of the Tennessee Bar Association, writes this month that the indigent defense systems created by Gideon are woefully underfunded:

I have heard U. S. Attorney General Eric Holder speak, and, as he has on numerous occasions, he emphasized the need to reform the indigent defense system if the country is to uphold its promise of “equal justice for all.” When he received the Brennan Legacy Award in November 2009 and spoke at the Brennan Legacy Awards Dinner, he specifically mentioned Tennessee in his speech when he focused on the necessity of reforms for indigent defense and the current state of public defender networks in this country. He noted that in our state, a county public defender’s office had six attorneys handle more than 10,000 misdemeanor cases in 2006, which meant lawyers could spend an average of just under an hour per case. General Holder then commented that “high caseloads leave even those lawyers with the best of intentions little time to investigate, file appropriate motions, and do the basic things we assume lawyers do.”

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Statistics Show that Criminals Target Each Other

Criminals target each other, trend shows.

Since the US murder rate is such a hot topic right now, let's remember that a vast majority of intentional homicides are between people who know each other and people who have criminal records. This is one of
the best reasons to avoid hanging out in the "wrong crowd" as we'll as avoiding BEing the "wrong crowd."

This is why I would often prefer to go to trial on a murder case than a DUI. With murders, there is almost always a history between the deceased and the accused. Often, but not always, they are mutually
engaged in some activity and having a dispute that they can't solve through the legal system. (One can't sue another for failing to pay for drugs, for example.)  Maybe the deceased initiated the conflict. Maybe the defendant acted in self-defense.

I often wonder how many fewer murders there would be from legalizing drugs. Buy/sell drugs on the courthouse steps. If there is a dispute over price or quantity, call the police. If it's not a police matter, file suit.

As always, if you find yourself on the wrong side of the criminal justice system, call us.

-John

 
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