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Crash the Justice System
March 11, 2012 8:28 AM   Subscribe

Go to Trial: Crash the Justice System. Michelle Alexander argues that ubiquitous plea bargains have allowed America's politicians and judicial system to short-circuit constitutional due process and ignore the mechanics of mass incarceration. 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.
posted by the mad poster! (84 comments total) 24 users marked this as a favorite

 
Well, who wants to go first?
posted by Rubbstone at 8:33 AM on March 11, 2012 [12 favorites]


They don't call it the Prisoner's Dilemma for nothing.
posted by Horace Rumpole at 8:33 AM on March 11, 2012 [27 favorites]


Something about this article shook me.

“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.

I know that our government isn't run the way they taught me in High School. It never really occurred to me that the system was so broken that it couldn't be run that way, though.

I think I'm gonna go take a shower.
posted by Richard Daly at 8:44 AM on March 11, 2012 [9 favorites]


To be actually charged with a crime puts one in the privileged class, these days.
posted by Trurl at 8:44 AM on March 11, 2012 [5 favorites]


What is this "justice system" that I hear so many people talking about? Aren't we talking about America's systems of laws, police, courts, and prisons? Why are we calling it the "justice system"? D those two words not mean anything anymore?
posted by fuq at 8:45 AM on March 11, 2012 [3 favorites]


Mass protest would force a public conversation that, to date, we have been content to avoid.

Do they think that legislators would hesitate to build more prisons? I sure don't.
posted by dubold at 8:48 AM on March 11, 2012 [3 favorites]


Do they think that legislators would hesitate to build more prisons? I sure don't.

They can't afford to. California recently had to release tens of thousands of prisoners because of over crowding.
posted by empath at 8:57 AM on March 11, 2012 [5 favorites]


It's one of those odd psychological things, I'm sure.

You're presented with the choice: you can either have this assuredly bad result guaranteed, or you can take your chances and either have no bad result at all or a much much worse result with no foreknowledge of the outcome.

Given that the choice is actually presented in the form of "take this plea bargain and you'll only be in for 3 years, but if you go to trial you could end up in for 15" (and the idea that the trial may result in a not-guilty verdict is never mentioned)...

Television has led me to believe that plea bargains are usually offered when the prosecuting attorney doesn't feel they have a strong enough case to prove beyond a reasonable doubt and they're seeking a quick end to the investigation to lighten their workload.

I don't know if that's actually how things work, it being television and all, but it does lead me to believe that taking a plea bargain is usually the worst outcome for the defendant.
posted by hippybear at 8:59 AM on March 11, 2012


It's not just prisons. It's court buildings, and judges, and law schools, etc. Those things cost taxes.
posted by Richard Daly at 8:59 AM on March 11, 2012


Well fuck it let's just privatize the whole thing. Running Man style. Today's verdict in The State of NY vs Spicynuts is brought to you by: Taco Bell- run for the border, OR DIE! Limited time only by one chalupa get one free!
posted by spicynuts at 9:03 AM on March 11, 2012 [6 favorites]


Holy fuck she is right, this would kill it, this would kill the system.

It wouldn't even need to be national, just one jurisdiction forced way beyond capacity and the fear would spread among legislatures in line with hope spreading among prisoners.

The Prisoner's Dilemma requires that prisoners cannot talk to each other, there will come a point where this will all make enough sense to somebody.
posted by Blasdelb at 9:03 AM on March 11, 2012 [2 favorites]


I'm unsure if it was "deliberately engineered", or just a system that evolved based on ease and convenience (which imo is the root of most things evil, a la the banality of evil).
posted by edgeways at 9:04 AM on March 11, 2012 [16 favorites]


Do they think that legislators would hesitate to build more prisons?

They can't build them overnight.

A mass refusal to plea bargain would have an instant effect -- there would be an immediate overflow of people being held for trial. City and county jails, many of which already operate at, near, or over capacity would be swamped. Parking lots would be turned into holding cells. The system would do more than bulge at the seams - it would explode.

Of course, the downside is that thousands and thousands of people would be subject to vengeful prosecution from a system OUTRAGED that people DARE demand their right to a jury trial, so you'd get some "you think you're so smart, huh?" sentences handed down by irate judges.

It's a helluva idea. Terrifyingly simple. Totally unworkable (who wants to go first?). But still. A helluva idea.
posted by BitterOldPunk at 9:04 AM on March 11, 2012 [6 favorites]


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.

There's a weak spot in this argument. It depends on people recognizing that gutting constitutional protections in the name of expediency is a bad thing, people caring enough about it, or being economically able to protest, and those protests having an impact and starting a national constitution.

I'm not going to say it could never happen. I'm just going to say the last 10 years don't encourage me that the response wouldn't be along the lines of "A dangerous radical organization is seeking to get rapists, drug dealers and urban gang members set loose by abusing constitutional protections. The constitution isn't a suicide pact and only guarantees due process, not judicial process". Followed by a vast shrug as 'reforms' to the system made trial by jury almost either impossible to access, or meaningless.

As an idea, it's interesting, because it does demonstrate how badly wrong things have gone. As a plan it's kind of insane.
posted by Grimgrin at 9:11 AM on March 11, 2012 [9 favorites]


Sounds like organizing to make a 'run on the courts' suffers from the problem described by the volunteer's dilemma: nobody wants to risk the worst outcome for themselves, especially when sufficient numbers of people could make it happen without your help in particular.

That said: I'd love to see this, and it's not impossible.

I just wonder if it would be the unjust laws or the Constitutional rights that get axed.
posted by edguardo at 9:11 AM on March 11, 2012 [4 favorites]


don't forget the massive increase of people "inconvenienced" by having to serve on jury duty
posted by edgeways at 9:11 AM on March 11, 2012 [3 favorites]


You would need the justice system to make one change to be effective:

Charges are decided on an all-or-nothing basis. None of this trying for manslaughter along with murder bullshit.

It would also stop prosecutors from charging everything including the kitchen sink in order to scare the accused into a plea bargain.
posted by Talez at 9:12 AM on March 11, 2012 [2 favorites]


It's plausible if defense attorney groups all pledge to do it. Perhaps a 'guilty plea considered harmful' white paper.
posted by empath at 9:15 AM on March 11, 2012


Perhaps a 'guilty plea considered harmful' white paper.

What is a 'white paper'?
posted by edguardo at 9:19 AM on March 11, 2012


It's always interesting to see hacking protocols replicated in meatspace. This is a denial-of-service attack.
posted by gerryblog at 9:24 AM on March 11, 2012 [30 favorites]


Television has led me to believe that plea bargains are usually offered when the prosecuting attorney doesn't feel they have a strong enough case to prove beyond a reasonable doubt and they're seeking a quick end to the investigation to lighten their workload.

Plea-bargains are generally offered as a matter of course, part of ongoing negotiations between the prosecutor and defense counsel. A high-profile crime might not have one, because the prosecutor wants to make their bones on it and has no issue with going to trial, but for the drug charges which are mostly the issue here, they are just a simple fact of not wanting to deal with a trial.

And then, should the defendant reject the plea, they probably won't be going to "trial" anyway. The garden variety criminal case is probably drug-related, with very little evidence at issue. Defense Counsel's best chance to win the case isn't at trial, but at a suppressionary hearing, where they argue for the exclusion of (usually) the seized contraband on fourth and fifth amendment grounds, and where if they win, the state will generally drop their case because there was only one real piece of evidence in issue and they can't use it anymore.

Anyway, defense attorneys couldn't, by law, sign a pledge towards this sort of thing, because ultimately taking a plea bargain isn't up to them. It's malpractice if they don't take it to their client and let him or her consider it, and then follow their wishes.
posted by Navelgazer at 9:27 AM on March 11, 2012 [1 favorite]


If everyone asked for a jury trial, then you would see delays in the judicial system, and perhaps that might motivate a change in legislation.

As a personal anecdote, I prosecute misdemeanor cases. These crimes don't carry a lot of punishment. We’ve had the same number of courts to handle these cases despite the population in our county tripling to nearly a million residents. No protest was needed, just population growth. Cases now take 5 to 7 years to go to trial, where they used to take 1 to 2 years. Without plea bargains, it could be at least a decade before a case goes to trial.

Interestingly enough, I catch flak when I don't offer plea bargains on cases because guilt is rarely the issue. The debate is in regards to punishment.

I don't know what impact a protest like this would have on prosecutor offices, which I think is a relevant consideration as we file the cases. Prosecutors are charged to uphold the law and file cases that can be proven beyond a reasonable doubt. Whether a case can be proven at trial is a factor that is already considered in the intake process.

The court is the bottleneck. There is one judge and one jury per trial. If you tried a case everyday for a year, you could only try 365 cases a year. That doesn't include civil matters. The most ambitious courts in the country try 3-4 cases a month, which means you cannot expect to try more than 50 cases a year.
posted by abdulf at 9:37 AM on March 11, 2012 [2 favorites]


Also, keep in mind that DoS'ing the courts affects everyone, not just the volunteers. I guess if you want to spend the next ten years in jail to prove a point, that's your business, but I don't think you should get to drag anyone else into it. I wouldn't be surprised if prosecutors started opening their plea bargains with, "Look, you can be out on probation next Monday, or you can rot in jail for however many years (decades?) it takes these jerks to go home, and then take your chances on five to ten more."
posted by d. z. wang at 9:46 AM on March 11, 2012


Let's see. A large percentage of those who go to trial will be found guilty, then sentenced to excessive terms as a punitive measure for going to trial. I hate this already, but, as they say, "In for a penny, in for a pound." Anyhow, some of these sentences will be successfully appealed, and a certain percentage will have their terms adjusted accordingly, leading to many who'll be released with time served. Might need a few more courtrooms. Judges. Jurors, etc.

Better to make them do it right the first time: prove the case or let you go. If you stop plea bargaining, the convictions (eventually) achieved by such skilled prosecutors as, say, those in Los Angeles, wouldn't fill up even one of those little movie rooms at the local cinema. This doesn't rise to the complexity of the prisoners' dilemma. More like simple arithmetic.

About the overcrowded prisons: privatizing doesn't make it better or cheaper. Instead, how about decriminalizing drugs? That would remove more than half the population of prisons and put them back on the streets. The immediate savings would be in the billions of dollars, trillions eventually.

The "streets" won't be measurably more dangerous than they are now, and the organizations that generate obscene amounts of cash (dealing in drugs) will see their stocks devaluated by factors upon factors. Foreign drug cartels will have to explore markets other than the US for customers, and a goodly portion of our local addicts won't be so motivated to steal the stereo from my car.

That's my pies in the skies for today.
posted by mule98J at 9:49 AM on March 11, 2012 [1 favorite]


Charges are decided on an all-or-nothing basis. None of this trying for manslaughter along with murder bullshit.

Lesser included offenses are a good thing. Consider a case where the jury suspects the defendant did something bad but maybe not quite as bad as what was charged. Given an all-or-nothing choice, they may be tempted to vote to convict rather than let the defendant go free. Lesser included offenses allow a way out. In fact, in a capital case the Constitution requires that the jury be given instructions for lesser included offenses. Beck v. Alabama, 447 U.S. 625 (1980).
posted by jedicus at 9:59 AM on March 11, 2012 [10 favorites]


Why do we want to DoS the courts again? In poker, you can fold your hand based on your prediction of the outcome. In court same thing. I'm not sure that's a bad thing at all. The bad thing would be if people don't know they have another choice (facts not in evidence)

In other news, the bank can't actually pay everyone all their money at once!
posted by ctmf at 9:59 AM on March 11, 2012 [2 favorites]


I've done complete trial prep for winnable cases and had the client freak out on the day of trial and take a bad deal just because the prospect of letting six strangers decide your future is terrifying. Most of my criminal clients aren't thinking long term. They have emergencies that are happening to them right now, and their first and only priority is getting out of jail immediately.
posted by 1adam12 at 10:04 AM on March 11, 2012 [5 favorites]


Yes, please please do this! We should have activists going door to door in poor neighborhoods handing out literature to this effect, ideally offering with legal aid for anyone who signs up.

Any super rich folks out there who claim to be libertarians? You could create massive reform by funding legal aid for drug cases who refuse to plea out.
posted by jeffburdges at 10:04 AM on March 11, 2012 [2 favorites]


Justice Magazine

Various shows talking about the court system

Pro Tip: Always have a court reporter. That way you have a record for appeal.
posted by rough ashlar at 10:07 AM on March 11, 2012 [1 favorite]


This misses the fact that most people charged with a crime are actually guilty, and that accepting the plea bargain is the best of all probable outcomes.
There are problems with the system...big ones...but I don't see how this addresses any of them.
posted by rocket88 at 10:11 AM on March 11, 2012 [3 favorites]


This misses the fact that most people charged with a crime are actually guilty, and that accepting the plea bargain is the best of all probable outcomes.

Sadly, a huge proportion of US prisoners are serving enormous sentences for victimless crimes that probably wouldn't warrant prison sentences at all in other western countries. A disproportionate number of those prisoners are black, despite the fact that more white people are guilty of committing the same offence.

you'd get some "you think you're so smart, huh?" sentences handed down by irate judges.

Yeah, your normal sentences look like that to the rest of the world. I'm not seeing what the difference would be.
posted by PeterMcDermott at 10:22 AM on March 11, 2012 [16 favorites]


You guys seem to be missing a point here. A large percentage of those being prosecuted are, in fact, guilty. Moreover, they know they are guilty. They know their odds of successfully defending themselves at a jury trial are long odds indeed, even if the jury trial was 100 percent fair, which it probably isn't.

Take. The. Deal.
posted by Cool Papa Bell at 10:23 AM on March 11, 2012 [2 favorites]


When I read stories like this I end up realizing for the hundredth time "Oh, wait, they didn't commit a crime, they just violated America's drug laws.". It's depressing.
posted by benito.strauss at 10:31 AM on March 11, 2012 [11 favorites]


The idea in this article comes up in every first year Criminal Law class at law schools across the country. It comes up in lunch-table discussions among young defense attorneys. It comes up in philosophy and public policy conversations every time people talk about plea bargains. I believe that the system would be better if there were a way to make taxpayers and government officials really see the full cost of arresting, prosecuting, and imprisoning millions of people. I really do believe that. However, I don't believe it's right or fair or just to suggest that the way to do that is to sacrifice thousands of people who could each individually better their situations by negotiating with the government instead of going to trial.

What you're really asking is that defense attorneys abandon the interests of their clients in pursuit of a higher cause and that poor people who have been repeatedly screwed by the system volunteer to be screwed again to make the system stronger. The real question is, how many people's lives are you willing to sacrifice to make this happen? Which people are expendable enough that they should spend unnecessary extra years or decades in prison, away from their loved ones and unable to build lives in the way you and I take for granted, so that the rest of us can be taught a lesson about the real costs of "justice?"
posted by decathecting at 10:32 AM on March 11, 2012 [12 favorites]


This + jury nullification = better shot at justice

/pie in the sky idealism
posted by Benny Andajetz at 10:35 AM on March 11, 2012 [2 favorites]


It wouldn't even need to be national, just one jurisdiction forced way beyond capacity and the fear would spread among legislatures in line with hope spreading among prisoners.

This could easily start in Alameda County, California, where Occupy Oakland protestors are regularly rounded up and charged with such niceties as "lynching" (for attempting to help a fellow protestor who's being physically assaulted by cops), and held in already overcrowded jail cells. There's an anti-arrest, anti-prosecutor, anti-jail community already in place, green-hatted volunteer lawyers on the prowl, and a growing crowd of incensed white protestors and sympathizers buttressing the vast black population which has been at the receiving end of this system for generations.
posted by muffuletta at 11:00 AM on March 11, 2012 [8 favorites]


I got charge with a crime.

Initial court appearance consisted of me, my lawyer, and 90 other guys who didn't have lawyers. I was told I didn't need to show up, that he would take care of everything, but my bond papers said I was required to be there and I didn't want to lose that bond. My lawyer said I was welcome to come, but I could tell he was irritated I wanted to. I was out in 5 minutes. The rest of the people had their initial initial appearances. No idea how long they were there, but they were being taken in order of arrival (and most people got there roughly the same time).

Second appearance was my lawyer, myself, and a ADA (or something). I think I was required to be there, but I waited on a bench while he went in a glass room to talk to her. 5 minutes.

Third appearance was a court appearance to formally dismiss charges. I did have to wait for a while this time, got to see other people do their thing: Violation of a restraining order (some woman stalking another woman that she lived a block from, so she lived within violating distance of the other woman). Another case where a woman was driving without a license. She pled guilty, got a $400 fine, then the judge says, "I see you have another offense for the same thing. Would you like to just take care of that appearance right now?" She did and got the same fine. Assault charges, meth charges, gun violations. It was a parade of real criminals and me (yes, that is sarcasm).

I watched case after case and every fucking time I thought, "God these people are idiots for not having a lawyer." I'd been required to go get a session of therapy to see if I had a problem, and once I did that my charges were dropped. I'm betting many of these people could have done the same. I paid for my night in jail, paid for the mental evaluation, paid for my lawyer, and walked out without a record.

I'll also say I was guilty of the charge. At no time did I ever deny this. I did think the whole case was bogus from the stupid fucking law, to the overly sensitive and precious police officer, to the way I was treated. Cuffed, thrown in the back of a van on my arms (my wrists were swollen and purple), glasses taken away, more or less denied my phone call (they wouldn't give me my iPhone to look up a contact. I have no numbers memorized), and put in a jail cell blind with some pretty scary folk. I was charged $100+ for the three hours I sat on a bench in the cell, charged money for a shitty breakfast I refused, and my glasses were broken when they vacuum packed them.

My crime? Public Intoxication. I was leaving a Psychedelic Furs concert and a cop stops me, tries to interrogate me, I didn't want to talk to him and tried to continue on, he asks me if I am drunk, I said something like, "I'm leaving a bar. What do you think? I'm not driving, not staggering, have a place to sober up, so don't know why you care." Public Intox is entirely subjective in Iowa. There's no breathalyzer. There's no blood draw. It's only what the police officer determines is reality. I was super pissed.

And this is why you need a lawyer. I'm sure I would have brought a lot of that stuff up, I would have probably yelled about some of the treatment, I'm sure I would have demanded compensation for my glasses, and I am sure I would have been found guilty. I paid court costs and the stuff I already noted. I think the whole thing cost me close to a grand, but I shudder to think what it would have been if I'd tried to go it alone or just taken what was initially offered (guilty plea, fine, potential jail of at least 30 days, community service, and a criminal record that could be expunged after two years).

The police are not your friends. Well, unless you actually need one, then they are great. It's when they are out there enforcing dumb laws that they are worthless.

41 years on this planet with no prior charges. I've never been belligerent or disrespectful towards a police officer, but I won't even say "Good afternoon, Officer" without my lawyer present now. Oh, and I have his phone number memorized, carry his card in my pocket, and we have a retainer agreement in place. I expect to go another 41 years without needing him, but on my 82 birthday the justice system had better watch out!
posted by cjorgensen at 11:04 AM on March 11, 2012 [46 favorites]


I have a sense that if this were to occur, the end result wouldn't be a thoughtful discussion and reform of due process inadequacies. If there is a sharp increase in criminal defendants requesting jury trials, clogging up the courts, the plan will backfire and the judiciary will simply try to expedite the process and afford less due process. You have a right to a speedy trial, and by god they will give it to you.
posted by Mr Mister at 11:11 AM on March 11, 2012 [2 favorites]


Man, it's like you people are just presuming that everyone charged with a crime is actually innocent. What's that all about?
posted by stet at 11:15 AM on March 11, 2012 [10 favorites]


You guys seem to be missing a point here. A large percentage of those being prosecuted are, in fact, guilty. Moreover, they know they are guilty. They know their odds of successfully defending themselves at a jury trial are long odds indeed, even if the jury trial was 100 percent fair, which it probably isn't.

Well, the right to legal representation means they won't have to defend themselves. And it is up to the prosecution to prove their guilt beyond a reasonable doubt, not the defense's burden to prove innocence. Even if a defendant IS guilty, the burden of proof of guilt can be greater than the prosecution is capable of carrying.

The point is, don't take the certain punishment over demanding a trial. Shift the burden to the state to prove your guilt rather than confessing even to a lesser charge. It's your right as a citizen, and surrendering it is foolhardy.
posted by hippybear at 11:20 AM on March 11, 2012 [4 favorites]


well I think this will have to be a systematic movement. Certainly doing it in a scattershot way is going to just leave one victimized for no return
posted by the mad poster! at 11:22 AM on March 11, 2012


In Florida, where foreclosures have to be court-ordered, the number of trials required shot through the roof. Rather than prompting a discussion about foreclosures, they just created a rocket docket to ram the cases through with the utmost speed.

I fear that's what will happen to the hapless guinea pigs who take part in an experiment like this. There are quite easy ways to expedite court cases.

You'll have to systematically clean out Tough On Crime people from Congress, state legislatures, and Commonwealth Attorney/District Attorney offices. This will be extraordinarily difficult, nobody ever thinks tha they need their right to a jury trial. Something like this might spark the public discussion needed, but it throws the people who participated totally under the bus.
posted by Hollywood Upstairs Medical College at 11:27 AM on March 11, 2012


Well, the right to legal representation means they won't have to defend themselves.

To really make this work, everyone charged with a crime would have to waive their right to counsel, too. Because there's no criminal defense lawyer who can ethically sacrifice her or his client for the perceived greater good of crashing the entire criminal justice system. So this really wouldn't get off the ground if the attorneys are advising their clients to take a plea bargain which will almost always provide a better outcome than a trial.

Plea bargains really do result in more favorable outcomes for people who are going to be convicted of crimes, anyway. I saw this firsthand when I started my legal career, practicing first as a defense attorney and then as a prosecutor.

We act as if there's something inherently wrong or suspect with a system that allows people to negotiate mutually beneficial outcomes. There's not.
posted by MoonOrb at 11:30 AM on March 11, 2012 [4 favorites]


You guys seem to be missing a point here. A large percentage of those being prosecuted are, in fact, guilty. Moreover, they know they are guilty. They know their odds of successfully defending themselves at a jury trial are long odds indeed, even if the jury trial was 100 percent fair, which it probably isn't.

I agree with both the article and Cool Papa Bell here. And I think that there's another huge problem that we can't fix without raising taxes significantly: there just isn't enough money in the justice system for a majority of the cases to go to trial. The article says, "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." Reading that, I almost laughed. There already aren't enough judges, lawyers and prison cells to deal with the CURRENT tsunami of litigation! That's a big part of why this problem exists in the first place.

I work in a courthouse. (Civil, not criminal, i.e. we don't have "plea bargains" in my courthouse; we have settlements). While I agree with the majority of what is in the article, I do feel that it is worth providing a realistic assessment of the budgeting problem involved in this issue. I'm not trying to defend the system; I'm trying to help provide some insight on why it is the way it is.

In my state, the courts are broke. Literally. Courthouses are being closed down because the state can't afford to keep them open. The courthouses left are understaffed and overworked. There have been budget cuts and a hiring freeze. This is a huge problem. We don't have enough judges at the courthouse I work at, let alone judicial secretaries, law clerks, and research clerks.

When a case goes to trial, it means thousands of dollars of time and effort. People tend to think of the costs of a trial in terms of the costs of their own lawyer, but it goes so much further than that. Not only do you have to pay all the court staff for their time (judges, court officers, scheduling clerks, etc.), but you're taking up valuable time in the courtroom that the courthouse just doesn't have enough of.

Plus, once your time in the courtroom is done, the courthouse's work isn't. Your case's paperwork needs to be processed, but even more time-consuming than that is the writing that the judges have to do for your case. (Trials obviously involve MUCH more writing for a judge than a settlement or a plea bargain.) Judges are supposed to have "law clerks" to help them with this writing — except that the state can't afford to employ even close to the number of law clerks necessary to handle the percentage of cases that currently go to trial, let alone the additional cases that would go to trial if everybody refused plea-bargains.

So what would happen if every case decided to go to trial ...?

Yes, you would successfully "crash" the justice system. But I don't think you would achieve the outcome that you want — which is justice, right? You'd send a message that the system is broken by breaking it more. Whereas everybody who actually has sufficient experience with the system knows what the problems are, and knows that big changes need to happen in order to fix them.

Already, trials are taking place months and even years from the date of the incident. Your case wouldn't be heard for even longer if every case went to trial. (Your right to a "speedy trial" would be a joke.) Plus, unless the state hired hundreds of more public defenders, your already-overworked public defender now has to split his time among even more cases — meaning that the quality of your trial will go way down, because your lawyer doesn't have enough hours in the day for the number of trials he is supposed to prepare for.

I agree with the article that the pressure on defendants to plea bargain their cases is a problem. I agree with Cool Papa Bell that in many circumstances, these defendants are not going to be better off if they take their case to trial — and in some cases, I think they would be worse off. I disagree that "crashing the justice system" is the way to fix the problem.
posted by hypotheticole at 11:31 AM on March 11, 2012 [7 favorites]


Could the average defendant afford the legal fees for a case that goes to trial?
posted by sevenyearlurk at 11:32 AM on March 11, 2012


In the federal system, there's a two point reduction for "Acceptance of Responsibility" under the sentencing guidelines, plus an additional potential one point reduction available under certain circumstances for higher offense levels if you timely notify the government of your intent to plea so they don't have to prepare for trial. So unless your purpose is to go to trial to challenge a constitutional issue, going to trial in fed court means you're looking at a de facto loss of 2-3 points at sentencing if you lose.
posted by Dr. Zira at 11:40 AM on March 11, 2012


So many problems with this article and this proposal, it's hard to know where to begin.

(1) Clearly Michelle Alexander is in way over her head in discussing the criminal justice system. An elementary error in this sentence calls everything else about her article into question: "Most people charged with crimes forfeit their constitutional rights and plead guilty." Wrong. They do not "forfeit" their constitutional rights. There are certain ways you can forfeit constitutional rights (for example: you can forfeit your right to counsel if you assault your attorney; you can forfeit your rights under the 6th Amendment confrontation clause by securing the unavailability of a witness against you). But she is not talking about forfeiture, she's talking about waiver. You waive constitutional rights when you plead guilty. So right there, she's marked herself out as being in way over her head. The difference between forfeiture and waiver is fundamental. (How did this woman clerk for a U.S. Supreme Court justice?)

(2) The population she proposes would refuse to plead guilty does not have the luxury of refusing plea bargains. They have families to return to. She writes as though these people were superfluous and don't have any responsibilities outside of jail or prison. They do. They desperately need to be out, even if it's at the cost of a criminal record. One of the biggest hardships of being incarcerated is the child care and child support burdens get passed to other family members. (Even men who are unemployed and not the sole caretaker for children, will still hustle junk, collect copper and sell it for scrap, or deal drugs to make money and help support their kids.) So refusing to plead guilty at the behest of some ivory tower academic who doesn't even understand basic legal concepts like waiver and forfeiture is a non-starter. Furthermore, she disrespects these people's circumstances by assuming they could actually do this. She's treating them as superfluous.

(3) There's also the issue of whether these people are, in fact, guilty. The state has a very good chance of making a case against most of my clients, so it is a huge risk to take the case to trial. The deals that are being made are not just reduced time in return for pleading guilty; typical deals are time served (i.e., you get out today, rather than sit in jail for a year waiting for a trial, after which you could get six years or more years in the workhouse if you're convicted) and they are allowing people to plead to misdemeanors when they were originally charged with felonies for crimes they actually, almost certainly, did commit. She ignores the fact that many defendants acknowledge their guilt and want to be with their families, and will do what it takes to get back home.

(4) If defendants were to assert their rights as she proposes, there's a good chance that they would still have to go to trial, but that they would be released pre-trial on low bonds (to reduce crowding in the county jail) and then, if they were convicted, would have a greater chance of being placed on probation. (In my state, a law was recently passed that eliminated incarceration as an option for certain criminal offenses; probation is the default punishment.) This would not be an attactive option for many defendants. They lead chaotic and transient lives, they do not want to be subject to pre-trial supervision and subject to probation conditions upon conviction. They know what's good for them. They will take a time served offer, or a shorter term of incarceration with no requirement of probation upon release. Once again, her ivory tower thinking completely ignores the reality of how the system works and what defendants want and need.

(5) The defendants she contemplates undertaking this mass refusal to plead guilty are the poorest of the poor. One asset they do have is their lives; they are alive and can be there for their kids, their parents, or damn, they can just enjoy hanging out on the street corner with their homies, sipping malt liquor from a bottle. Any of that is better than being incarcerated. For her to propose that they remain incarcerated to "crash" the judicial system is so unrealistic, it's basically tantamount to asking a totally broke person to donate $1000 per month to lobby for a reform of penal laws. Not going to happen.

So, in summary: She knows too little about the criminal justice system to be writing about this topic. She misunderstands the circumstance of defendants and the functioning of the criminal justice system. And her proposal is a non-starter. It's so ill-thought out it's not even interesting.
posted by jayder at 12:07 PM on March 11, 2012 [14 favorites]


This misses the fact that most people charged with a crime are actually guilty, and that accepting the plea bargain is the best of all probable outcomes.

I don't think you're clear on a crucial aspect of what "guilty" actually means. It doesn't mean "did the Bad Thing for real."
posted by odinsdream at 12:15 PM on March 11, 2012 [2 favorites]


cjorgensen: I watched case after case and every fucking time I thought, "God these people are idiots for not having a lawyer...."

I think the whole thing cost me close to a grand,...

God, those people are idiots for not having $1k in their bank accounts....
posted by tzikeh at 12:17 PM on March 11, 2012 [3 favorites]


Actually, I have a better idea to accomplish Alexander's goal. Right now, every person in America who has a middle class lifestyle or better and who has ever committed a crime should turn themselves in. If you use drugs, including marijuana or prescription drugs not as prescribed, bring your stash to your nearest police station. If you've cheated on your taxes, call the IRS. If you have a library book you've never returned or a gun that isn't properly registered or a piece of jewelry you shoplifted when you were in college, confess. If you've ever had sex with someone who was drunker than you were, confess to rape. If you've ever downloaded a song from the internet, confess to piracy. If you've ever talked on your cell phone in your car, confess to reckless driving. If you've ever hit someone, confess to assault. Go to the police or the DAs office or the nearest law enforcement official you can find and confess your sins. Call the media and confess if the government won't pay attention to you, and drum up enough outrage to make them arrest you. Invoke your right to an attorney. Insist on hearings and file motions and invoke your right to a jury trial. If this stuff matters to you, you should be willing to put your own life on the line for principle, right?

Unless you think that giving up your freedom for the greater good is only the right thing to do for those other guilty people who aren't you...
posted by decathecting at 12:51 PM on March 11, 2012 [12 favorites]


I don't think you're clear on a crucial aspect of what "guilty" actually means. It doesn't mean "did the Bad Thing for real."

Yes it does, and that's how I meant it. "Committed a crime and got caught". And let's assume for the sake of argument that the crime wasn't drug possession.
posted by rocket88 at 12:57 PM on March 11, 2012


Here's a quick tip to lighten the load on the system: legalize pot.
posted by DreamerFi at 1:06 PM on March 11, 2012 [1 favorite]


Could the average defendant afford the legal fees for a case that goes to trial?

And:

God, those people are idiots for not having $1k in their bank accounts....

I watched a guy with a first offense drug possession charge get a fine and 30 days in jail. They don't let you stay there for free. As I noted above they provide you with a bill for your stay and food.

I watched a woman (noted above) plead guilty to two driving without a license offenses and be convicted in seconds. $800. (Hell, I felt like I could have gotten those offenses rolled into one, and I'm not a lawyer.)

I watched a guy get a fine for violating his pervious court order and basically be told he needed to get a new job, since he couldn't meet the requirements of said court order in his current job (he wasn't allowed to work any place that served alcohol).

And in every single one of these cases the people were also ordered to pay court costs. I'm going to reiterate these people are fucking idiots for not having a lawyer. Can't afford one? That can't afford to not have one.

I don't have $1k in my bank account either.

I will say that this may have been one of the times in my life where I did feel like part of the privileged class. My lawyer sent my bill to a PO Box. He has no idea where I live. He never asked me if I could afford to pay. Maybe it's like that for all defendants, but I doubt it.

I shouldn't be calling these people idiots, since it sucks to be forced into having to make a bad decision. It sucks to not have the resources to navigate the legal system with the least bruises. But at the end of the day if you are choosing to go it alone you are most likely going to have it worse in time, money, and sentence.
posted by cjorgensen at 1:09 PM on March 11, 2012 [3 favorites]


fuq: "Aren't we talking about America's systems of laws, police, courts, and prisons? Why are we calling it the "justice system"? D those two words not mean anything anymore?"

Oh, there is a system ostensibly in place to dispense justice. Unfortunately, it seems to largely dispense injustice. Even more unfortunately, folks in states like mine seem to like it that way, thus I keep getting outvoted.
posted by wierdo at 1:12 PM on March 11, 2012


Cases now take 5 to 7 years to go to trial, where they used to take 1 to 2 years.

Does everyone waive the 6th Amendment?

Your right to a "speedy trial" would be a joke.

Or you'd get your case dismissed with prejudice... Do the delays have to specifically be the prosecutor's fault? That the delays are the system's problem and not the prosecutor's makes no difference to a defendant.
posted by the christopher hundreds at 1:13 PM on March 11, 2012 [1 favorite]


Where are they supposed to get money for a lawyer? Lawyers don't take criminal cases on contingency. The state will fine you whether you have money or not.
posted by empath at 1:14 PM on March 11, 2012


Pushing the moral burden of action upon those who would likely suffer the most and are already among the most marginalized and victimized among us isn't a solution.

I feel the problem in courts is similar to the problems we are having in schools: very few people have the time or the energy to investigate how things are run inside the walls of these public institutions. We grow up with a lot of assumptions and rarely are forced to compare them to reality.

The few times I've been involved in court I saw people would regularly waive their 6th amendment rights, and the few who didn't the court would literally schedule their court date on the last possible day to fit within their definition of speedy (I think 45 days was the current standard) -- you had to specifically ask for a speedy trial, it wasn't something they told you or offered you, it was something you had to read on a little paper they gave you advising you of your "rights".

As mentioned above, the inconvenience of a jury summons would already create tremendous amounts of resentment towards any sort of "protest" move to force litigation, and would likely be used by the prosecutor -- talking about how the defendant refused plenty of wonderful plea bargains to "waste" everyone's time. I do not know anyone who actually wants to spend time as a juror, and most people I know find elaborate ways to get out of jury trials. People are paid a pittance to be a juror, not all types of work will compensate for time on a jury which already warps the jury pool above and beyond the myriad of ways someone can be dismissed.

What is the most depressing to me is the tremendous cost of all of this, the courts, the jail, the litigation -- if we simply handed that money over to the inmates I strongly believe many of their crimes would never have been committed in the first place.
posted by Shit Parade at 1:29 PM on March 11, 2012 [3 favorites]


hippybear: "Television has led me to believe that plea bargains are usually offered when the prosecuting attorney doesn't feel they have a strong enough case to prove beyond a reasonable doubt and they're seeking a quick end to the investigation to lighten their workload. "

Plea bargains are pretty much offered as a matter of course. The only question is how much of a break they're willing to give, which just so happens to almost always be open to negotiation. To negotiate, one must actually deal with the problem head on, which most people aren't terribly interested in doing. You can do this yourself, but my observation has been that attorneys can usually negotiate a better deal for you.

Then there are the cases (and this recently happened to a friend of mine) where the defendant retains an attorney at a 5 figure expense, the prosecution piles on the delays, hoping you'll run out of money to pay said attorney, and then when that doesn't work they finally drop the charges entirely. That may work better when your attorney is known for prevailing in seemingly impossible cases at trial, although I'm not entirely sure.

What really pisses me off about the tactic is that the prosecutors seem to be doing it just to make sure they punch you in the dick that many more times before admitting they can't convict. Said friend of mine was out over $10,000 between the bondsman's fee and the attorney. All on pretty much no evidence. (He got fired, drugs were found at his former workplace..which is the sort of workplace where I would be shocked if there was a single store in the entire chain that didn't have drugs in it this very second, and then he got arrested on the assumption they were his)

I'm just glad he called me before executing on his idiotic idea to try and talk it out with the police. Having to pay ten grand to get out of jail and stay out is a lot better than effing yourself by saying something that could possibly be construed as incriminating. (My almost exact words: "I am not an attorney and this is not legal advice, but I will mock you mercilessly if you actually talk to the cops. They would not be badgering you into answering questions if they were not trying to pin this on you. And yes, Detective Friendly's act is almost certainly just that, an act.")

The real shame is that most of these people blindly accepting plea bargains have no idea of the world of hurt that may be unleashed on them for future minor crimes because of having one or more previous convictions. Unfortunately, a lot of attorneys forget that part, too.
posted by wierdo at 1:36 PM on March 11, 2012 [2 favorites]


And let's assume for the sake of argument that the crime wasn't drug possession.

Why only "for the sake of argument"? Why not for realsies?
posted by benito.strauss at 1:42 PM on March 11, 2012


Television has led me to believe that plea bargains are usually offered when the prosecuting attorney doesn't feel they have a strong enough case to prove beyond a reasonable doubt and they're seeking a quick end to the investigation to lighten their workload.

Where I practice, plea bargains are offered regardless of the strength of the state's case, in virtually all cases. Here are the most common scenarios I see.

(1) Prosecutor feels they have a very strong case, makes an as-charged plea offer to the minimum sentence. There may or may not be an up-front probation offer (that is, the state agreeing to probation without the defendant having to petition the court for it). The benefit of this for the defendant is that if it goes to trial the defendant could get higher than the minimum. (The law provides for a sentencing range, between x years and y years incarceration for a given offense and offender level.)

(2) Prosecutor recognizes the case is weak, makes a very favorable plea offer to a reduced charge, often to a time served sentence or fine only.

(Some DA's offices have a "no deals" policy with regard to certain offenses, but generally that means they insist that a defendant plead as-charged. There can still be plea agreements if the defendant is pleading as-charged. It just means they will not agree to a reduction of the offense.)

(3) Prosecutor makes an offer that defendant thinks is too harsh and defendant sets for trial, often hoping the prosecutor is bluffing and will make a more favorable offer once defendant signals his/her intent to go to trial. Defendant is gambling that prosecutor doesn't really want to try the case. Some judges in my area enforce policies that they will not accept plea agreements after the case is set for trial, to avoid this kind of brinksmanship. If the judge enforces such a policy, there are three possible outcomes: (a) the defendant can plead "open to the court," meaning the defendant is pleading guilty without any agreed-upon sentence, and will be sentenced by the court; (b) prosecutor can enter a nolle prosequi, ending the prosecution; or (c) the case goes to trial.

(4) Prosecutor makes an offer that the defendant thinks is too harsh and the defendant pleads open to the court.

And sometimes, when we really need a reduction in the charge (for example, the indicted offense has to be served at 100%, no parole eligibility) but the prosecutor is not willing to agree to a reduction without serious concessions by the defendant, we have option

(5) Prosecutor offers a plea agreement whereby defendant pleads to a reduced charge, but at a higher sentencing range than the defendant's prior record would merit. (I.e., defendant pleads as a multiple offender when, in fact, the defendant has little prior record.) This would result in defendant serving a higher percentage of his sentence prior to parole eligibility, but it would still be better than the 100% of his sentence he would have to serve if convicted as indicted.

The only offenses I see go to trial almost without exception are first-degree murder cases with very solid evidence, and other high-level felonies where the prosecutor insists on an as-charged plea and the mandatory sentence is extremely high.
posted by jayder at 2:17 PM on March 11, 2012 [3 favorites]


Shit Parade What is the most depressing to me is the tremendous cost of all of this, the courts, the jail, the litigation -- if we simply handed that money over to the inmates I strongly believe many of their crimes would never have been committed in the first place.

This is the problem. If the USA had half-decent social security and health systems, it could even afford to retain its ludicrous drug laws, simply because so much of illicit drug sales and use is driven by economic desperation and self-medication.

The root of the American problem is simply this: too many and too powerful assholes who refuse to pay enough taxes.
posted by aeschenkarnos at 3:38 PM on March 11, 2012 [1 favorite]


I'm not sure the proper practice of Law is advanced by placing such an emphasis on the varying relative negotiating skills of the parties lawyers.

If you're not putting "the State proving guilt beyond a reasonable doubt" as the primary focus of the process, isn't that legal malpractice?
posted by mikelieman at 4:16 PM on March 11, 2012 [1 favorite]



Pushing the moral burden of action upon those who would likely suffer the most and are already among the most marginalized and victimized among us isn't a solution.


I think y'all are missing a point about organizing. One of the best ways to achieve powerful, effective social change is by organizing the people affected by the problem. The rest of us - the best we can do is...almost like charity work. We don't live the problem. We don't have the automatic, deep, visceral understanding of what it's like. The solutions we generate are very, very often inappropriate and paternalistic. Middle class folks 'solving' the problems faced by the poor...that has not, historically, worked very well.

In fact, it's perilously close to paternalism to imply that poor black folks (and poor folks generally) are soooo oppressed that of course they can't be expected to understand or work against their own oppression.

In this country we've seen both actual civil rights movements organized by people of color (with such support and advice as appropriate from white allies) and a lot of shitty, top-down, paternalistic 'solutions' (Senator Moynihan, anyone?) Both can happen.

As to this "Michelle Alexander doesn't know what she's talking about" thing - Michelle Alexander clerked for Justice Blackmun, directed the Racial Justice Project of the California ACLU and did a bunch of other race and justice organizing. While she certainly isn't a proletarian or anything, she has about as much standing as anyone I can think of to talk about the law on these matters. I was excited and surprised to see a column by her in the NYT - perhaps they're taking that poll about how people want them to actually tell the truth to heart.
posted by Frowner at 4:45 PM on March 11, 2012 [2 favorites]


I am friends with a guy who does - or did - domestic violence counseling - his clients were referred to him through the county (we live in Southern California). He told me a couple of things recently.

The county has been having budget issues for quite some time, which is no surprise. One thing they did was to shut down their domestic violence program in total. What this meant was that they dumped all the people on probation onto the local cities; they literally shut down the offices of the county probation dept. I can't imagine how this was legal to foist all the responsibility onto the cities, and I am sure the cities didn't agree to it, but it happened. I am not sure if this was all the people on probation or just certain subdivisions, but I know they closed a number of offices countywide.

For several months before this, the county courts had been shutting down for several days a week. At first it was one day a month, then two, then every Wednesday. The courts rapidly got even more backlogged than they were before. After about a year of falling behind schedule, among other things, they actually quit prosecuting domestic violence. If someone decided to enter not guilty plea, the prosecutors were dropping the charges. Of course if it was very serious, they'd prosecute, but the vast majority of DV cases are not like you see on TV. Word got out very quickly about this, and there was an immediate impact. I am not sure if there were other crimes they declined to prosecute, but I imagine there were.

One of the county requirements for DV probation was to attend mandatory counseling - but without DV cases moving through the system, this killed my friend's DV counseling business. Though he did other counseling work, the loss of DV clients was a major blow. He closed his office and moved to the mountains, early retirement.

TL;DR Local county's example of dealing with judicial overload was to quit prosecuting certain crimes.
posted by Xoebe at 5:13 PM on March 11, 2012 [3 favorites]


Xoebe --

Interesting comment. I set almost all my domestic assault cases for trial, because most of them are situations in which the alleged victim doesn't want to prosecute after she calms down. The victim doesn't show up for trial, and although the court could issue an instanter subpoena to have the victim apprehended and brought to court to testify, this is almost never done.

What makes this a viable option is (a) the fact that my clients are out if custody, having posted bond, and (b) in the communities in which domestic assault arrests are common, everyone knows that if the victim doesn't show up, the case will be dropped. So I don't even have to tell victims that (it would be unethical for me to encourage a victim not to show, of course). It's common knowledge. Prosecutors don't really care; that's one less bullshit case they have to try. As long as they issued the subpoenas they're covered politically.

So they are being prosecuted here, but the prosecutors are not pursuing the case when the victim is uncooperative, which is most of the time.
posted by jayder at 5:40 PM on March 11, 2012 [1 favorite]


I'm still struggling with the basic premise. How would Susan Burton have been better off if she had gone to trial instead of taken a plea bargain?

I suppose it's really obvious, but I guess implicit in her argument is that there are some things that shouldn't be crimes. And if a bunch of people all of a sudden refuse pleas and insist on trials, sufficient pressure will be brought to bear on our system that instead of just finding the additional resources to prosecute the cases--or come up with other alternatives, like fast-track and specialty courts or other innovations--that we will collectively decide that we should criminalize fewer things.

Do I have this right?
posted by MoonOrb at 5:53 PM on March 11, 2012


As to this "Michelle Alexander doesn't know what she's talking about" thing - Michelle Alexander clerked for Justice Blackmun, directed the Racial Justice Project of the California ACLU and did a bunch of other race and justice organizing. While she certainly isn't a proletarian or anything, she has about as much standing as anyone I can think of to talk about the law on these matters

She reveals surprising ignorance about the criminal justice system in her piece. Civil rights litigation is completely different from criminal defense. Nothing in her resume suggests she knows anything about criminal law. And as I pointed out, she revealed (with her idiotic use of "forfeit" when she meant "waive") that she really doesn't know what she's talking about. So if, by "standing to speak about this issue" we mean "actual expertise about the area of practice," I beg to differ. She doesn't have that standing.

Often these types of academics have spent a little time playing at being lawyers which I suspect her "civil rights" practice amounted to. It reminds me of the Pope maxim, "a little knowledge is a dangerous thing ..."

Ok, I'll shut up.
posted by jayder at 5:59 PM on March 11, 2012


However you want to attack the expertise of the person involved jayder, the basic assertion that our current system of justice is failing the vast majority of those who get caught up it in seems valid. She seems at a loss of how to fix the system and would rather risk the unknowns which could result in bringing it down, and, honestly, that doesn't seem all that irrational to me.
posted by Shit Parade at 6:30 PM on March 11, 2012


There are two separate stresses on the system being proposed here. First, the judiciary could side step the court costs by obliterating civil liberties, but they could not easily escape the appeals this "rocket docketing" would generate. Second, there is no way they could afford to incarcerate all these people anyways. We're talking about threatening states with needing to massively increase their jail capacity during a recession. Ain't happening. Instead, they must choose between incarcerating new non-violent drug offenders and existing violent offenders.
posted by jeffburdges at 6:44 PM on March 11, 2012


A targeted approach may be fruitful: first organize and persuade all non-violent drug defendants to fight their case through the courts and second canvas members of the community to engage in jury nullification for all non-violent drug related charges. Inundating the courts with more litigation, overfilling already crowded local and county jails for all those who don't qualify for bail, and then getting as many of those cases as possible to result in a hung jury or a dismissal. California would be an ideal state and Oakland/Alameda county an ideal first site. With something like 1 out of every 9 black male in prison, there ought to plenty of support to at least try something different. It also has a civil-disobedience angle.
posted by Shit Parade at 6:55 PM on March 11, 2012 [2 favorites]


MetaFilter: I am not an attorney and this is not legal advice, but I will mock you mercilessly if you actually talk to the cops.

Meanwhile: Blow the whistle - get 6 days in psyc ward
posted by rough ashlar at 7:02 PM on March 11, 2012


However you want to attack the expertise of the person involved jayder, the basic assertion that our current system of justice is failing the vast majority of those who get caught up it in seems valid. She seems at a loss of how to fix the system and would rather risk the unknowns which could result in bringing it down, and, honestly, that doesn't seem all that irrational to me.

... Except that what Michelle Alexander is proposing isn't an "unknown which could result in bringing [the system] down." What she is proposing is literally to bring it down, to "crash the system." I hate it put it this way, but that seems irresponsible to me. She isn't proposing a new system, or even a significant change to the new one; she's pointing out a problem with the current system, and suggesting that breaking the system further will draw attention to the fact that it is already broken. (...?!)

I appreciated Jayder's insight on this article. Also, as I read the article over, I feel that the overarching theme seems to be less about the pressure that defendants feel to accept plea bargains, and more about the social stratification related to mass incarceration for non-violent crimes.

Additionally, while the stories of Susan Burton and Erma Faye Stewart are absolutely tragic and moving, they are not the ones that I would use to argue that plea bargaining pressure is a problem. (I'd use those stories to argue that these convictions for non-violent crimes ruin lives, or provide examples of those affected by the war on drugs.) To make the point that defendants feel pressure to accept plea bargains and that this is a violation of their Constitutional rights, I'd find examples of people who genuinely weren't guilty of what they were charged with, felt pressure to accept a plea bargain and subsequently accepted one, and then ended up being worse off than if they had refused the plea bargain and gone to trial. There isn't enough evidence that Burton and Stewart would have been better off if they had gone to trial for them to serve as effective examples of plea bargaining casualties.

(** I hope that nobody reads into that last paragraph and infers that I think Burton and Stewart deserved what they got merely because they were guilty of what they were charged with, because that's not how I feel.)

Anyway. Using the right examples to reinforce your argument is crucial, and Burton and Stewart aren't the right ones for Michelle Alexander's article.
posted by hypotheticole at 7:20 PM on March 11, 2012


Except that what Michelle Alexander is proposing isn't an "unknown which could result in bringing [the system] down." What she is proposing is literally to bring it down, to "crash the system." I hate it put it this way, but that seems irresponsible to me. She isn't proposing a new system, or even a significant change to the new one; she's pointing out a problem with the current system, and suggesting that breaking the system further will draw attention to the fact that it is already broken. (...?!)

Not exactly what I meant. I would say unknowns will result after bringing down the system -- analogy would be revolution, civil war, invasion -- that the current status quo is no longer preferable or acceptable and the risks associated with chaos of destroying the system has become preferable. Only the truly desperate or truly mad tend to engage in such calculus.
posted by Shit Parade at 7:27 PM on March 11, 2012


rocket88 writes "Yes it does, and that's how I meant it. 'Committed a crime and got caught'. And let's assume for the sake of argument that the crime wasn't drug possession."

Strictly speaking one isn't guilty unless the state can prove it's case.

Shit Parade writes "I do not know anyone who actually wants to spend time as a juror"

I do, at least once anyways just to see what's it's like. I've only been called once and missed my chance because I'd left the jursiditcion. And now that I have family working in local media it's unlikely I'll ever serve even if called.

Xoebe writes "TL;DR Local county's example of dealing with judicial overload was to quit prosecuting certain crimes."

I understand that DV is difficult to prosecute but I really hope they stopped prosecuting other victimless crimes before they stopped prosecuting DV.
posted by Mitheral at 10:07 PM on March 11, 2012


Strictly speaking one isn't guilty unless the state can prove it's case.

You're using a selective and limited definition of the word.
posted by rocket88 at 6:59 AM on March 12, 2012


Isn't that the only one which matters in a court of law?
posted by mikelieman at 7:04 AM on March 12, 2012


It's true that is a narrow definition. But if we are going to talk about guilty people as it relates to who should be convicted then the state being able to prove it's case has to be part of the definition. We can't go around saying "it doesn't matter if Joe Bob spent three years in prison and then was released without being prosecuted because everyone knows he was guilty anyways". Without a trial we have no idea if Joe Bob is guilty.
posted by Mitheral at 8:31 AM on March 12, 2012 [1 favorite]


Without a trial we have no idea if Joe Bob is guilty.

And we've just merged back into the extrajudicial assassination thread...
posted by mikelieman at 8:41 AM on March 12, 2012


Fully informed Jury Association
posted by rough ashlar at 5:09 PM on March 12, 2012 [1 favorite]



Without a trial we have no idea if Joe Bob is guilty.

Well perhaps, but I would argue it all is based on assumption anyways. Even when something is "proven" there can be plenty of cracks for errors to be made. Yeah sometimes it is without a doubt, but sometimes it is 'I think they are guilty and will vote to convict just in case'. So, just as with plea bargains, conviction by trial is still often assumed guilty, despite pithy sayings to the contrary.

The paraphrase 'I would prefer 100 guilty men go free than one innocent man imprisoned', sounds nice and noble but certainly is not how we operate. neither really is the innocent until proven guilty.

Life is messy
posted by edgeways at 5:18 PM on March 12, 2012


Without a trial we have no idea if Joe Bob is guilty.

Joe Bob knows.
posted by rocket88 at 6:18 PM on March 12, 2012


Joe Bob knows.

But even when facts aren't in dispute guilt can be. Sometimes the law is just completely stupid and no jury would convict. In some states fellatio is illegal. Good luck bringing that one to trial if all parties were adults and consenting. Guilty? Maybe.

There's several definitions of guilt.

1. Is it a crime that was committed?
2. Did the person actually do it?
3. Do the people with authority care?

I am guilty of having breakfast this morning. Lock me up!
posted by cjorgensen at 8:19 PM on March 18, 2012


But even when facts aren't in dispute guilt can be. Sometimes the law is just completely stupid and no jury would convict. In some states fellatio is illegal. Good luck bringing that one to trial if all parties were adults and consenting. Guilty? Maybe.

Yes, but we're talking about people refusing plea deals on things that they are extremely likely to be convicted on, not on these outlier examples where taking a plea deal wouldn't be appropriate in the first place. We're not exactly crashing the justice system when people refuse to plead guilty to things that they will never be convicted on. We'd be crashing the justice system if people did the opposite.

Within the meaning of this thread, we should all agree that "guilty" actually means, you know, guilty. If someone thinks they're legitimately not guilty of a crime for whatever reason, then, fine. Contest it. Go to trial if you didn't actually do it. Or go to trial if you did do it, but you don't think it's a crime. But for the purposes of this discussion, isn't the more interesting question whether people, en masse, should assert their rights to jury trials even when they're guilty in the sense of "yes we agree that it's a crime and yes we know that this person actually did it"?
posted by MoonOrb at 8:43 PM on March 18, 2012


A hint of this starting to happen in Portland, Oregon.
posted by muffuletta at 4:18 PM on March 19, 2012


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