All of this short article by Michelle Alexander (author of The New Jim Crow) is worth reading, but here’s a highlight:
No wonder, then, that most people waive their rights. Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.
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).
I think that mass incarceration is one of the issues which will make future Americans look back on us and say “what was wrong with them? What were they thinking?”
This is actually being done by a group of homeless activists in Boulder. To protest the city’s anti-camping law, they all started demanded trials. Because the ordinance criminalizes sleeping outside under any kind of “shelter,” even a blanket, and there aren’t enough beds at the shelter for everyone, they won a fair number of victories by jury nullification alone.
The city finally got so overwhelmed that they … no, they didn’t change the ordinance … but they did lower the fine and take away the possibility of jail time, so the defendants are no longer entitled to a jury trial. Of course, if you can’t pay the fine – or, in fairness to the system, don’t show up for your community service – you can still be arrested.
Great article! I wish the system would crash ASAP. Best solution would be to end the war on drugs. Unfortunately, the evisceration of our rights, including the right to a jury trial, has been going on for some time. Didn’t the SC rule quite a few years ago that crimes with a less than six month sentence don’t require a jury trial? I’m pretty sure conservatives didn’t cry “judicial activism!” when the SC inserted an arbitrary six month limit into the sixth amendment.
chingona – that’s not “crashing the system”. The advocates were not trying to shut down the courts, they were showing that when the government actually had to prove its case to a jury, they were not going to get convictions.
An interesting idea. I don’t think the system would crash; the system is both more cohesive and more flexible than the group of rights-demanders. The system would quickly get rulings excusing itself from fast-trial provisions, and would throw up some tent camps, and the accused would rot there.
Which is not to say that it would achieve nothing. Of necessity, the law enforcement apparatus would have to start triaging crime much more vigorously. That would be a boon for many…it would also lead to a boom in below-the-line criminality. I think you’d end up with an Occupy-type public reaction: maximum support at the beginning of the movement, dwindling as the costs and inconveniences accumulate.
*maximum support at the beginning of the movement, dwindling as the costs and inconveniences accumulate.
Seemingly relevant: In SF, the new sheriff has been embroiled in accusations of domestic violence since New Year’s. Now he has decided to plead guilty to a misdemeanor charge of false imprisonment. But the DA, who happens to be the previous sheriff, is questioning whether his plea should be accepted… because he isn’t sure the accused really believes he is guilty.
The money quote, relevant to this discussion: “We’re going to address this on Monday because we’re not in the custom, not in the habit, of taking a guilty plea from somebody who is not guilty,” he added. “If the defendant in this case believes he is not guilty, then we should go to trial and let a jury decide.”
I am so glad that someone in power is turning his attention to the critical, pressing issue of extremely highly privileged white men taking plea deals in an effort to avoid jury trials which would be highly embarrassing for them, while maintaining their innocence.
I am so happy with Gascon for that. Especially since he forced Mirkarimi to make a public apology to the woman who (at the victim’s request) made a video of the bruises, her statement about the attack, etc. For her attempts to do the right thing she got dragged into the mess and whaled on by Mirkarimi’s attorneys.
The system would quickly get rulings excusing itself from fast-trial provisions
Really? How would it do those? Where would it get those rulings, and how would it get them “quickly”? I’m not familiar with any magical process for getting an appellate court to move with speed, especially when it comes to overruling Constitutional protections.
that’s not “crashing the system”. The advocates were not trying to shut down the courts, they were showing that when the government actually had to prove its case to a jury, they were not going to get convictions.
It was both. They explicitly stated that they didn’t think the law would stand up to any serious scrutiny, and they wanted to mount a constitutional challenge (so far, it has not been successful, but they continue to appeal every conviction). AND they wanted overwhelm the system to force the city to consider if it really wanted to put its resources into enforcing its own laws. The city had to hire an additional prosecutor just to keep up.
But again, they weren’t simply asking people arrested to sit in jail for months or to risk serious penalties in order to overwhelm the system and nothing more; by insisting on jury trials, they were also raising awareness of how stupid the laws were. It’s not just “we’re going to overwhelm your docket” but “….and you will lose.” Very different than drug cases.
and you will lose.” Very different than drug cases.
Ah, okay. I get the distinction you’re making. Yes. For better or for worse, the homeless defendants don’t have a lot to lose by fighting. The worst case scenario for them is the same penalty as if they’d just accepted the ticket. Indeed, that is not the case for your typical drug charge defendant.
Right. Also, the homeless defendants aren’t trying to shut down the courts; they’re trying to force the prosecutors and the police to actually treat the charges as something other than an administrative rubber-stamp.
I’ve thought about this a lot: isn’t a weakened court system akin to unbalancing the government? After all, for better or worse, the court system is supposed to be a check on the executive and legislative branches. If there isn’t a way to get your civil case in court in a timely (and not prohibitively expensive) fashion, how are we as a people supposed to get laws repealed that are unfair or that violate our rights? How are we supposed to hold administrative agencies accountable when their own review process is our only real recourse? Don’t get me started on the privatization of executive functions, and the unfairness of a profit-based incarceration system.
The court system was designed so that one person could change what needed to be changed against all the powers in the world, if that person was legally correct. It’s the ultimate backblow against lobbyists and even the US government sometimes, the arena where the weak and the strong are supposed to be equal in the eyes of the law. (In reality, of course not, but ideals are important.)
I’m not saying that it’s the most urgent issue ever, but I haven’t seen much said in the way of this. It seems to violate the fundamental Constitutional setup of our government.
(Any links would be appreciated!)
Conspiring to break the judicial system could be construed as an attack on the Constitutional system, I suppose, but a conspiracy that functions by expecting the system to operate according to its self-declared parameters is going to be hard to demonize.
Civil cases should be unaffected by almost any amount of disruption over on the criminal side; it’s an entirely different set of people (at least here in Colorado it is). There can be fifty thousand people in the holding cells waiting for their jury trials on pot charges, but that should not impact your ability to get a hearing on Simple Truth vs. Ampersand, your civil suit demanding that Amp give you back all the hours his site lured you into spending.
Man, that holding cell is going to be RANK.
I don’t see it so much as conspiring to break the judicial system as using the judicial system to compel the legislative system (which makes the laws) and the executive system (which decides how to enforce them) to serve society’s needs rather than their own.
I’ve been told that judges pressure you to settle at every step because the courts are so backlogged. Granted, this is CA, but I don’t think the problem is limited to just our state.
U.S. Courts Face Backlogs and Layoffs
Criminal court backlogs hurt defendants…
The Rise and Spread of Mandatory Arbitration as a Substitute for the Jury Trial
Federal Civil Jury Trials Should Be Abolished
This is not universally true. In New Hampshire, for instance, recent cuts in the court system have led to custody hearings being delayed for over a year, as they prioritize criminal cases above civil disputes.
Really. Well, I learned something today. (Ow! It burns! I’m old and cannot learn new things without painfully reconfiguring old memory cells currently tasked with remembering optimal “Alpha Centauri” strategies.)
I have no doubt that I can still play a mean game of Stellar Conquest. Jus’ sayin’.
Ooh, you saw my 90s geek and raised with an 80s geek. We used to dream about the advanced design of future games like Stellar Conquest…when we were struggling with first edition D&D.
Did those original dice eventually become misshapen spheroids for you, too? The plastic was awful.
Now I’m curious just how far we can take this. Did you ever use Chainmail?
Are we REALLY having a nerd throwdown?
Dice? You had dice? We would have killed to have had eroded spheroid dice. Eroded spheroid dice were POSH. We had to hand-make cardboard chits with integers from 1 to n and draw them from a hat. Wasn’t a nice hat, either.
But with the bad-plastic dice, you’re thinking of Basic D&D in the dragon box. That was a lot of fun, but I was actually referring to Chainmail. Of course, we mainly played Chainmail when Fletcher was too busy to run naval war. Those were good times.
Mythago – “We”? I don’t see any of your cards. Are you in the game? ;)
Aha. Yes, I remember those. We never actually used ’em. You can approximate almost any die roll with a suitable combination of d6 (using logic, not adding). Any combination if you’re willing to discard and re-roll impossible results.
I think we stole the d6 from the Parcheesi set.
Mythago, I’m so sorry that you didn’t get the memo. Nerds are cool now.
You may join this joust … if you can demonstrate sufficient nerd cred. Otherwise, go wash your gym socks.
Oh, mythago is a grognard of the ancient regime. She’s almost as geezerlike as me.
It’s true. Beauty before age in this case, though.
I don’t see any of your cards.
Cards? I was the model for Tor Wauki, does that count?
Yes it’s definitely not true that the two systems are always separate! My county had a very aggressive DA who just insisted on taking certain classes of serious crimes to trial with a very narrow window for plea bargaining and combine that with a shortage of judges and our criminal courts got so clogged that they moved criminal cases to civil court and four times, civil trials were suspended for 4-5 months at a time. They tried to transfer criminal trials to family court, probate court and even small claims court but the state court of appeals wouldn’t let them do that. They wound up doing a handful of civil trials in an abandoned elementary school’s converted classrooms. With moratoriums on trials, most civil cases ground to a halt. Without a trial date in sight, no one wanted to settle civil lawsuits.
Our criminal courts quickly backed up into 1,500 felony trials and many misdemeanor cases. We have a 10 period to find a courtroom for a trial so if they couldn’t do that, felonies were dismissed and refiled if it’s during the statutory limit and many misdemeanor cases were just dismissed, their statutory limits often expired. The DA would try to blackball the judges who dismissed them but they had to follow the law.
It got so bad that the Chief Justice of the Supreme Court had to compile a task force of mostly retired judges from other counties to come to my county and relieve the backlog. I do know that during this time, we’re only required to do jury duty at most once every 12 months but it was once every 12 months a day and jury lines of over 800 people outside waiting to be processed.
We have a new more sensible DA and most of this has been addressed. The task force came up with a strategic plan to reduce caseload and to prevent them from piling up again. There’s still some gridlock with civil but not nearly as bad. Mostly because the judge shortage still exists and judges don’t really retire. They come back and hear cases but don’t get paid for it b/c they pensions.
Here’s a couple of links on Riverside County and its backlog that took place several years ago:
Riverside adds judges to alleviate backlog
California State Supreme Court rules on use of courtrooms
Yes it does, and with a two-point bonus for making my comment retroactively wittier/more apropos.