Crash the system

“The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control.”
A NY Times opinion piece written by civil rights lawyer Michelle Alexander speaks the truth about our national system of mass incarceration and what may be the only possible method of fixing it. Every defense lawyer in the trenches knows that the criminal justice system is rigged, but the truth is rarely seen written in a national publication – it is something talked about behind closed doors, or in passing at the courthouse. In public we are infinitely more comfortable when we are lauding the best criminal justice system in the world, and how we work hard to protect our citizens’ constitutional rights – the dirty truth does not sound nearly as good.
Estimates vary from jurisdiction to jurisdiction, but on average 90 – 95% of criminal cases do not go to trial, and most plead guilty to something. Innocent people plead guilty, which is a tragedy ignored by many prosecutors, defense lawyers, and judges; while some guilty people go to trial, which is their absolute right. When innocent persons go to trial and lose, they are punished more severely than most guilty people who plead out.

“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.

The reason innocent people plead guilty is that they understand the system is rigged. In as many words, their lawyers explain to them how the system is rigged. You can plead now, and walk away with a light sentence or probation; or you can go to trial and risk spending a significant portion of your life in a prison cell. Some judges, although not all, will punish a defendant for exercising his or her constitutional rights – a probationary or light sentence following a guilty plea becomes maximum and/or consecutive sentences following trial. Defense lawyers advise their clients of this and advise them that the risk is not worth it.
The federal system is the worst offender – in some areas of the country, the federal courts have become the enforcers of our government’s failed drug war, almost to the exclusion of other federal crimes. When a person is charged in a federal drug conspiracy, with few exceptions, they know that they cannot exercise their right to a trial. The federal sentencing guidelines are specifically designed to punish any defendant who exercises his right to a trial, and designed to do so in the extreme. A 10-20 year sentence can easily become life imprisonment following a trial.
The federal defendant is rewarded for not exercising his or her constitutional rights – their sentence is reduced for pleading guilty. Their sentence is reduced for helping the government arrest more people for drug conspiracy. Their sentence is reduced for testifying in court against any person who exercises their right to a trial – making it difficult at best to tell who is telling the truth and who is lying or bending the truth so that they can get the promised reduction to their sentences. The defendant who insists on a jury hearing their case is punished by having every possible enhancement added to their sentence, by being sentenced based on “relevant conduct,” even conduct that has been acquitted by a jury, and by having federal inmates lined up to testify against them, including many they have never met, not only to prove their guilt but to increase the drug weights attributed to the defendant and thereby their sentence.
There is no legislative solution to this rigged system – it is rigged as a direct result of legislation. Politicians will always pass laws that are increasingly harsh, so that they can use them as a bully pulpit to get attention and votes. Over time, the laws criminalizing conduct have increased in number and severity – criminal liability reaches more and more Americans and mandatory minimum sentences are the order of the day.
Some of us complain about the steady erosion of our Constitutional Rights – but how can we complain when no one exercises those rights? Use it or lose it. The norm across the country is to waive our constitutional rights, so why shouldn’t we lose them?
The only solution may be the extreme solution that is the subject of Alexander’s article – what will happen if every person refuses to waive their constitutional rights? Would we crash the system?

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 machinery grinds on, but the system is broken. Let’s talk about it.

One Response to “Crash the system

  • just a quick question from a citizens’ POV..
    I hear & agree with the system is ‘rigged’ aspect, & not to accept a plea deal makes perfect sense..
    I just wonder if its rigged from the moment of contact in regards to an informed person exercizing their rights, be they involved in a traffic stop, or just merely as a bystander recording the encounter.. The LEO’s position is,”let the judge figure it out”.. Lawfully or not, the LEO is going to act so as to maintain authority over the situation..
    if you’re in contact with an LEO, you’re going to be stating your case in front of a judge @ worst, or @ best have the case dismissed after the arrest.
    In My opinion, this is the height of oppression/intimidation inherent in the system..
    Doesn’t this in itself discourage one to stand up for their rights?

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