System overload: plea bargains vs. trial by jury

A recent NYT editorial by Michelle Alexander, civil rights lawyer and author of The New Jim Crowe, posits a striking question: What would happen if everyone who was charged with a crime actually exercised their right to a trial by jury?

If you grew up watching Matlock as much as I did, you might think jury trials are fairly common. Unfortunately, the vast majority of the accused take plea bargains; more than ninety percent of criminal cases never see a jury trial. Thus the amount of resources that would be required for all alleged offenders to receive jury trials far exceeds what is currently available at the state or federal level.

The answer to that question, then, is this: Chaos would ensue. Alexander writes:

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.

So why do the accused so often take pleas? Haven’t we all been raised with the ideal that a jury of one’s peers is the highest standard of justice available in a democracy? Don’t we know that the burden of proof is with the prosecution, making it possible that even a guilty person could walk away unscathed from a jury trial?

The truth is, most people can’t afford a lawyer who will be able to spend any significant time or energy on them. They probably know little to nothing about the criminal justice system, and – particularly if they’re Black or undocumented – most of what they do know is more likely to instill fear or distrust than idealism or faith. So when they’re told (usually by their own defense lawyer) that a plea bargain is their best bet, that even if they’re innocent they’ll likely be convicted and given a much harsher sentence if the case goes to trial, many people feel powerless to challenge that.

And for a lot of folks, a plea bargain really is a good thing in some ways. Especially if the person is guilty of the offense, they often receive shorter sentences or probation from a plea bargain, and really can go home sooner. If they’re worried about what’s happening to their kids, for example, or just scared shitless by living in jail, many people will take the plea bargain first and ask questions later.

But once at home, secondary forms of punishment abound. Particularly for people convicted of drug offenses, public benefits like subsidized housing and food stamps are frequently revoked. Conviction records make finding jobs more difficult, and can result in people losing custody of their children. And if the person is convicted of another crime, the sentence could be much harsher as a result of the earlier conviction.

People who demand a trial by jury experience a longer waiting and trial period, and some probably do receive harsher sentences than the plea bargain would have offered. But many do not. And if the number of people who exercised their sixth amendment rights merely doubled, it would be enough to bring the current system to a crashing halt and require our country to seriously consider the way we lock people up.

It’s pretty depressing that simply utilizing our rights would so drastically disrupt today’s justice system. It’s also pretty exciting to think that the people who are often treated as the least powerful players in the criminal justice system have a very powerful resource at their disposal. That’s something to think about.

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