Drug War

Ordeal by Trial: Sowing Chaos With the Sixth Amendment

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Writing in The New York Times, Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, ponders what might happen if a substantial percentage of criminal defendants suddenly started insisting on their Sixth Amendment rights. It would "crash the justice system," she argues:

The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.

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….

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."

Alexander is mindful of the dangers this strategy would entail for individual defendants, who would risk years in prison by insisting on their day in court. But she suggests the chaos imagined by Davis would force a much-needed debate about who belongs in prison and why.

Cato Insitute scholar Timothy Lynch (whom Alexander quotes) discussed the implications of relying so heavily on plea bargains in the July issue of Reason. (His essay was part of a package on our overloaded criminal justice system.) Last September I noted the connection between plea bargains and mandatory minimum sentences.

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  1. “Alexander is mindful of the dangers this strategy would entail for individual defendants, who would risk years in prison by insisting on their day in court. But she suggests the chaos imagined by Davis would force a much-needed debate about who belongs in prison and why.”

    Yeah, as a criminal defense attorney, that’s a deal-breaker for me. Clients have the right to expect that I’m giving them advice about their individual best interests and the specific risks they face, not using them as an instrument of a large social effort. Clients are not properly instruments — unless, of course, they are fully informed instruments making a knowing and voluntary decision.

    1. Yeah, they’re playing the lotto with their lives and it probably wouldn’t change anything in the long run anyways. Some could walk but the ones they chose to prosecute would be made to pay. I would be one of those they decided to make an example of.

    2. Yeah, they’re playing the lotto with their lives and it probably wouldn’t change anything in the long run anyways. Some could walk but the ones they chose to prosecute would be made to pay. I would be one of those they decided to make an example of.

    3. So this is a real life example of the prisoner’s dilemma. If one person does it, he suffers more punishment than otherwise. If everyone does it, they force massive social change (maybe). Of course, the way the game is set up, the government wins under the strategy most defendants are likely to take.

      It’s still an interesting idea. Is it possible that there are other ways to accomplish the same goal (overwhelming the system) without playing into their hands?

    4. And Ken, tell me…If those criminal defendants insisted on a “speedy” trial, how many judges would say, “Fine. We’re selecting a jury right now! Try your case, counsel.”

      A few of those directives and the demands for speedy trial will end very quickly.

      “Clients have the right to expect that I’m giving them advice about their individual best interests and the specific risks they face, not using them as an instrument of a large social effort.”

      Someone might want to explain that to “legal scholar” Angela Davis.

      1. “…If those criminal defendants insisted on a “speedy” trial, how many judges would say, “Fine. We’re selecting a jury right now! Try your case, counsel.”

        I am sorry, but what lawyer would demand a speedy trial, yet not be prepared to act on it?

        1. Probably one from the Public Defenders office. Not knocking them at all, I think for the most part they do great work, they just have a ton of clients and aren’t always the most well prepared.

    5. Ken, I think that you want a fee for not going through the effort of going to trial. Why do indited cops and politicians always demand a trial?

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  2. Alexander is mindful of the dangers this strategy would entail for individual defendants, who would risk years in prison by insisting on their day in court.

    This problem is insuperable.

    Those “individual defendants” who go first would need dedication only a little bit shy of that shown by suicide bombers.

    We don’t have a lot of “almost as dedicated as suicide bombers” type folks lying around waiting to sign up for this campaign.

    1. Doing this would be the functional equivalent of a revolt against the government. It is no different than a tax revolt. If we all stopped paying our taxes, there would be nothing anyone could do about it. But, unless we all or a critical mass of us do it, it wouldn’t work. So no one is going to do it without knowing they are not acting alone, which requires a level of trust just not possible.

      If this ever happens, it won’t be the result of civil rights conscious lawyers. It will be the result of a complete breakdown of the justice system.

      1. Bad comparison (although not you worst ever).

        Not paying taxes is illegal. (Whether the taxes are unjust or not is immaterial to the argument.)

        Demanding a trial by jury is an enumerated right.

        Please explain how exercising an enumerated right can be a revolt?

        1. Smug much there Jew. Misunderstanding on your part (although your worst ever). The point is not to say that they are morally or even legally equivalent. But they are the same because they both present a prisoners dilemma.

          And it would be a revolt because the point of the action is not to protect any individual client but to shut down the entire justice system. Hard to see how that is not a revolt albeit not an armed one. It would amount to nonviolent civil disobedience.

          Not your worst effort Jew. You are getting a little better. But you are still not quite following the conversation.

  3. Economists call it the “prisoner’s dilemma” for a reason. It is not directly on-point, but it’s close enough for my purposes.

    1. You need to learn about this:

      http://en.wikipedia.org/wiki/Prisoner‘s_dilemma#The_iterated_prisoners.27_dilemma

  4. It would require a lot of cooperation on part of defendants. If the court system could not guarantee a person a speedy trial, what recourse is there? would they have to drop charges after a certain time period. I know that bigger cases, such as murder, grand larceny, and rape would be a higher priority than, say, smoking pot in one’s own home.

    Still, I would not put it past them to make examples of people for petty crimes against the state.

    1. I know that bigger cases, such as murder, grand larceny, and rape would be a higher priority than, say, smoking pot in one’s own home.

      I wouldn’t be so sure. Law enforcement and other state agencies don’t get federal grants to address crimes that are objectively harmful.

      1. Also, the bigger cases are harder work.

    2. “Still, I would not put it past them to make examples of people for petty crimes against the state.”

      If cops can grab up assets and force forfeiture, “petty crimes” are the most lucrative — and, thus, most important — offenses out there.

  5. 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.

    This is one reason (of many) I refuse to refer to this system as a justice system.

  6. “bigger cases….would be a higher priority”

    I wouldn’t be so sure of that. We’re talking about the government. They would let those people walk and have thier media bitches go all out chicken little because they need more money, and more judges, and more courtrooms “to keep us safe”. They would just see it as a good opportunity to further fleece the public. Meanwhile, they would still be locking people up for the petty shit.

    1. Jails would be full of people just waiting for trial, even more so than now.

  7. Yes our justice system is messed up, BUT it doesn’t help when people confuse the Bill of Right as applying to the states.

    1. …how the fuck does it work?

      1. Well it certainly does not include the Bill of Rights. I think Raul Berger did an excellent job of dismantling that argument.

        1. Then it wouldn’t include anything and is just empty syllables signifying nothing.

          I think the radical Republicans went to the trouble of passing the 14th for something, and not for nothing.

        2. Well it certainly does not include the Bill of Rights.

          Well it certainly was intended to, as the Congressmen who introduced it expressly stated. It’s in the Congressional Record; maybe you might want to look into it.

          1. As I said Berger ably dealt with this. Yes a few radicals made such comments, but more than enough congresscritters also commented about how they would not.

            Then there’s the Blaine Amendment (passed in house, not Senate) in 1875 which specifically set to prevent the states from establishing religion. If the B of R was incorporated, why but a few years was the congress trying to do what had already been done?

            Blaine amendment:

            No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

            1. BTW, have looked it up, have spent time studying the issue. Here, let me really get you heated up..truth is the USC was thrown out by Lincoln, and there is no way that an instrument that is merely a delegation of power can then be forced on the states involuntarily.

    2. “BUT it doesn’t help when people confuse the Bill of Right as applying to the states.”

      At this point, what parts of the bill have not been incorporated against the states? The third amendment? What else?

      Incorporation has been settled law for a very long time.

      1. When people say such things as “settled law”, they show what idiots they are. Is social security constitutional because it’s settled law? PLUUHHLEEZ!! To paraphrase Jefferson, years of abuse do not make a wrong any more right.

        1. When people write things like PLUUHHLEEX!! they show what idiots they are. See how that works?

          1. Naturally, I misspelled it. But the point remains, stop calling people idiots because you think you have all the answers.

            1. I call people idiots because they are. It’s not about my having all the answers, it’s about people repeating fallacies such as “settled law”. The very phrase “settled law” shows that the debate is going outside of whether something is constitutional or not.

              1. So, in your world, one man writes a book questioning incorporation, and that refutes all of the jurisprudence up to this point?

                1. So in your world continued error makes right?

                  Justice Frankfurter in 1959

                  We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.

        2. “When people say such things as “settled law”, they show what idiots they are.”

          Take a breath and state which part of the Bill Of Amendments has not been incorporated against the states.

          I know that the Third Amendment has not. What else?

          1. Juries in civil cases “at common law,” limits on review of jury factfinding (7th amendment)

  8. I’m glad to see you covering this, Jacob.

    I read it yesterday, and “thought about” sending it in (too HAAAAAARD).

    It would be nearly suicidal for any individual to do this, but it would undoubtedly have an effect on a large enough scale.

    A few days ago, it was “explained” to me that the medical marijuana provider raids orchestrated by the feds to coincide with the Montana Legislature’s deliberations were completely legitimate and justified “because they all pleaded guilty, so that proves it.”

  9. SAN FRANCISCO (KCBS) ? Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday.

    For at least six years, the police officers in charge of testing the 20 breathalizyers used by the Police Department did not carry out any tests on the equipment.

    http://sanfrancisco.cbslocal.c…..-in-doubt/

    I know we talk a lot about the drug war. But I wonder how many innocent people have been caught up in the DUI madness?

    1. They can report a positive on diabetics that haven’t had even a single drink.

      1. They are essentially a piece of medical diagnostic equipment. I don’t buy for a minute that a bunch of flatfoots put forth the effort necessary for ensuring they function properly.

  10. If everybody who got a speeding ticket insisted on a jury trial it would crash the system.

    Of course, the legislators would just make it illegal to ask for a trial.

    1. They have talked about doing that for DUIs in places.

      1. Actually, they have already done this in a number of jurisdictions. If the maximum penalty for an offense is six months then generally there is no right to a jury trial. SCOTUS has decided that the Sixth Amendment right to a jury trial in “all criminal cases” really doesn’t mean all criminal cases–just “serious” ones. If a defendant is facing six months’ or less incarceration, that is not “serious” enough to trigger the right to a jury trial. I guess “all” really doesn’t mean “all.”

        Blanton v. North Las Vegas, 489 U.S. 538 (1989).

        1. It is a living Constitution.

          1. Bingo. The system would not crash in response to a zillion jury trials. The system would simply say the framers could not have foreseen an America with 300 million people and rampant criminality, and surely the framer could not have intended for tens of thousands of criminals to go free for want of inexhaustible judicial resources. Thus, the living Constitution means rot in jail until we say so. Problem solved.

        2. Nothing is more important to the SCOTUS than making life convenient for judges.

          1. The worst part about that case were the concurances. Scalia argued that historically “cruel and unusual” meant cruel and illegal. He said the Amendment is designed to make sure judges didn’t give sentences outside the law.

            Now I think that is ridiculous. But it is not as ridiculous as Kennedy and White and the rest of the majority who argued that yes, some things can be out of proportion, but this wasn’t it. That is downright scary.

            1. Aren’t you thinking about the Harmelin case mentioned in the post, rather than the Blanton case mentioned by Pablo?

      2. In New Jersey, and I assume other states, they did something equally sneaky.

        At one time, a positive breath test was merely evidence of intoxication that a driver could refute with evidence that he was not acting intoxicated. Because DUI cases require proof beyond a reasonable doubt, many drivers were able to beat the charges on this ground.

        No matter – the Legislature changed the law. The crime is not merely being intoxicated and driving. The positive breath test is ITSELF the crime. All that need to be shown is that you blew positive at any time you were attempting to operate a car, even if you are not acting impaired, and you are guilty.

        Nobody sympathizes with drunk drivers, but there is something disturbingly Orwellian about one’s guilt or innocence being conclusively determined solely by a machine.

        1. Reminds me of that classic Star Trek episode where two nations were engaged in a computer-simulated war. The computers would simulate “hits” and identify who had been “killed.” If your number came up, you were required to report to a disintegration facility.

          1. You have to admit, that type of war sure is easier on the infra-structure.

    2. In CA, there is no right to a jury trial for a traffic infraction.

    3. In Kentucky, it is written into law that all offenses, including traffic citations fall under the right to have a jury trial. When I pleaded not guilty to my speeding ticket, I was given the option of a bench trial or a jury trial.

  11. I think this is a very good and thought provoking article. But I wish she hadn’t used the term Jim Crow and drug race into it. Sorry honey but it wouldn’t be any better if only whitey were being thrown in prison unfairly.

    1. John, I think part of the reason she talks about Jim Crow is from her book and the races of people most affected by the drug war. I have read the book and it is not bad. If what you read in the book were happening to whites, the drug war would have ended long ago.

      1. I doubt it. Plenty of whites are caught up in the drug war. By numbers, although not percentages, more than blacks. And the drug war grinds on. And the drug war is supported by a lot of blacks.

        I get the impression that if the drug war did affect whites and not blacks, this woman wouldn’t be as bothered by it.

        1. IIRC from her book, it is the percentage that is the issue. Even though whites get caught in roughly the same percentages as other races, the vast majority going to jail are black or brown. That is an issue that should concern the ‘black leadership’ but somehow fails to show up on their radar of important issues.

          I have no idea if she would be bothered by the drug war if whites were going to jail instead of blacks. Not really important in my opinion. What is important is we are locking up people because of a plant. If all these people demanded trial by jury, it would lock up the legal system.

          1. What is important is we are locking up people because of a plant.

            I completely agree. And that is why her dragging race into it is so disappointing.

  12. Prisoner’s dilemma played out with 5000 victims of the drug war. nice idea.

  13. I can’t help but think that prosecuters are having a tougher time finding a jury that will 100% guarantee a drug conviction.

    And Harmelin v. Michigan strikes me as one of the worst outcomes ever. At least it was 5-4.

    1. 672 grams. 1.5lbs got him life w/o parole.

  14. One other point. It wouldn’t just be clients who would be at risk. Attorneys would be acting against their clients’ best interest and putting their bar licenses at risk.

  15. the police officers in charge of testing the 20 breathalizyers used by the Police Department did not carry out any tests on the equipment.

    Making breathalyzer results essentially “incontestably true” leads to abuse?

    Who could have seen that coming?

    1. I wonder how many of those officers committed perjury and signed affidavits or testified in court swearing that the machines were tested and in good order? I am sure perjury indictments will be coming in short order. Right?

      1. Let’s check with dunphy. He’s always got the latest on how cops don’t get the benefit of any double standards when they’ve broken the law.

  16. The sheer explosion in the number of crimes on the books practically guarantees defendants will take plea bargains. Get charged with one count and it might be worth it to take it to court, get charges with 15-20 counts of various “crimes” and your odds of beating them all gets reduced.

    1. Yup. And if you were dumb enough to talk to the cops, they can probably get you for lying to an officer or perjury. Look at Scooter Libby. They never proved he did anything wrong. All they had was a single reporter whose notes contradicted his account of a meeting. And that was enough to get a lying to the government charge.

    2. 90 percent of unsourced statistics you find on the Internet are simply made up.

    3. That’s the whole point of multiple counts. Overwhelm the accused and lessen the likelihood of having a tacky trial. Tyranny of the prosecutor and all that.

      1. Sometimes yes, it’s a tactic used to overwhelm the defendant. Hang thirty years over his head so he’ll plead to some lesser offense. Sometimes people really do things like stab their girlfriend, hit a cop while fleeing the house then run a red light and kill someone.

  17. And it still wouldn’t work. A speedy trial is whatever sounds reasonable to SCOTUS. Right now that’s six months to a year. If every defendant stops taking pleas, the backlog will mean 2-4 years will become “reasonable”.

    The law is whatever judges say it is.

  18. More than 90 percent of criminal cases are never tried before a jury

    Very sneaky there. That (notably unsourced) number presumably includes cases that are dropped by the prosecution before trial, without a guilty plea. The relevant number for Ms Alexander’s argument would be the ratio of convictions to guilty pleas.

  19. Tulpa has to show up to be a dick.

    The bottom line is that the state should not be able to obtain by the coercion of disparate sentences what it could not legally obtain by direct coercion.

    If you can’t beat a prisoner into confessing, you shouldn’t be able to say, “If you confess we’ll give you probation but if you don’t confess and are convicted we’ll give you ten years!” either.

  20. Non-defendents can help the cause through Jury Nullification.

    If you don’t want to convict then don’t convict. A single Juror can force a hung-jury!

    As for me, I will tell them that my only interest is enforcing the law and then I will vote my conscience and the law be damned.

    1. “I will tell them that my only interest is enforcing the law and then I will vote my conscience and the law be damned.”

      And you will be thrown right off. And the guy will be obliged to endure yet another trial from scratch.

      There is a difference bwteen saying you are not satified that the state has proven guilt beyond reasonable doubt, and saying you don’t give a shit what the law is and will do whatever you like.

      1. This assumes that the judge has stated the law correctly to the jury.

        The system itself acknowledges that the trial judge sometimes gets it wrong – appeals courts often overturn convictions based on wrong instructions. Are the appeals judges nullifying the law by saying the trial judge is wrong?

  21. They could simply outlaw plea bargaining. A person can only be tried for the crime the evidence supports.

  22. Recent example – One of my employees had to serve jury duty last week. The defendant had been in jail without possibility of bond for ten months waiting for trial on an attempted murder charge. A charge that was thrown out by the jury on the first day of deliberations, within the first HOUR.

    Ten fucking months for a trial with NO physical evidence, no witnesses, no nothing. Just the accusation of a pissed off ex-girlfriend.

    1. My experiences are similar. I was never so filed with hatred of the legal system and law-abiding citizens until I got involved with the courts.

    2. Goddam nullifiers. Don’t they realize that a potential attempted murderer is walking the streets RIGHT NOW because of them?

    3. “Just the accusation of a pissed off ex-girlfriend.”

      See her problem is that she chose the wrong offense. She could have gone with rape or domestic violence. Then he would probably be in prison now.

  23. If you sincerely believe that prohibition is a dangerous and counter-productive policy then you must stop helping to enforce it. When it comes to acquittals, you, the juror, have the very last word!

    * It only takes one juror to prevent a guilty verdict.
    * You are not lawfully required to disclose your voting intention before taking your seat on a jury.
    * You are also not required to give a reason to the other jurors for your position when voting – just simply state you find the accused not guilty.
    * Jurors must understand that it is their opinion, their vote. If the Judge and the other jurors disapprove, too bad. There is no punishment for having a dissenting opinion.

    We must create what we can no longer afford to wait for – PLEASE VOTE TO ACQUIT!

  24. I remember a professor asking us to estimate how many people were in prison for crimes they did not commit. Surprise answer – about 70%. Plea bargains to lesser offenses necessarily mean you are pleading guilty to a crime you did not commit in order to avoid a trial and possibly being found guilty of the crime you did actually commit which would carry a heavier penalty.

    And I question the idea that a lawyer should accept a plea bargain in the best interest of his client to whom he owes his first duty. I suspect that many public defenders accept plea bargains because it is in *his* best interest to dispose of the case as quickly as possible.

  25. Something else I have wondered about – if the prosecution and the defense reach a plea bargain agreement, does the court have to accept the deal or can the judge refuse to allow the deal? It seems to me a judge with balls would refuse to accept plea deals on the grounds that if the defendant is in fact guilty of the greater charge the interests of society would dictate he be punished appropriately – a plea to a lesser offense does not serve the interest of society in getting this bad man off the street for as long as possible. At the same time, the prosecution’s willingness to accept a lesser plea would seem to indicate a lack of confidence in their own case and that therefore they know they are prosecuting a man with a decent chance of being found not guilty.

  26. Also, when you look at the piling on of charges against an accused it is obvious that the prosecutors are threatening far more punishment than they can possibly deliver in an attempt to coerce a plea to a lesser charge. The accused regularly has dozens of charges filed against him – if he goes to trial those generally become 6 or 8 charges. The rest of the charges are dropped because the prosecutors know they are bullshit charges they have no hope of getting a conviction on.

    I say we insist on jury trials – it won’t take many to clog up the system and if the first few are chosen carefully the risk of harsher consequences is minimal. Especially when you start challenging the reliability of the witnesses (cops) and the prosecutors themselves. More and more people are becoming aware that cops and prosecutors work together on what are really bad-faith prosecutions.

  27. Alexander is reciting the words of G. Gordon Liddy almost to the letter, without quotes or attribution.

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