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.