Monday, March 12, 2012

Spring Break!

What's going on in the District?  Any trials?  Or is most of Miami is in Aspen this week for spring break?

The NY Times has an op-ed saying that everyone should push for trial and that would crash the system.  
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.
The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment. 
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). 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. 

This has been talked about for quite some time, but no one ever has the guts to do it....  It would be interesting...


Anonymous said...

On the flipside, here is a panel on snitching that will take place this week.

Anonymous said...

We've heard this idea before. David, wasn't there a local jurisdiction in Pennsylvania that tried this in the 70s or 80s?

On another note, people decide to plead guilty for a host of reasons and, at least in this district, plenty of defendants go to trial if the sentences they face are too draconian even on a plea.

Anonymous said...

just do your part and try a case every 3 to 6 months

Anonymous said...

David I think the answer is with Judges. To the extent they have discretion we have to lobby them, speak to them, lecture them (when we can trick them into coming to cle seminars) about what the trial tax does to the system in general. What I do in state court is simple: when my client rejects the plea and an inexperienced prosecutor says that after conviction the state will seek (fill in your outrageous sentence here) I stop the proceedings and ask the judge to inquire about what just changed? What- other than exercising a constitutional right- just occurred to spur the prosecution to quadruple the plea offer? And would they be so kind as to explain the policy on the record? The fact is that the 3rd DCA is receptive to these arguments if you make a record. I suggest all trial lawyers read a few opinions from the 3rd on vindictiveness and what to do to make a record will be clear.
This is the biggest issue we face a criminal defense attorney trial lawyers.

Anonymous said...

Trials are hard. I think it's just easier to have your client plead and cooperate. The most important thing is to reduce your own stress.