Michelle Alexander, associate professor at Ohio State University’s Moritz College of Law and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, this weekend in an op-ed for The New York Times shared a conversation she had with Susan Burton, executive director of A New Way of Life in Los Angeles, regarding a question that is near and dear to our hearts here at the Fully Informed Jury Association:
“What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial?” Alexander’s answer can be found in this excerpt of her commentary:
The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”
Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.
Of course, as Alexander points out, there are significant reasons why accused people far more often opt for a plea bargain than for trial by jury:
In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.
The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.
A robust jury system was insisted upon by many involved in the founding of the United States for the protection of certain accused persons from malicious prosecutions and unjust punishments. In many ways, that initial protection has been expanded to better include people from all walks of life, both in the protections of trial by jury available to defendants and as participants in the role of jurors as well. But we have also seen our legal system evolve into one in which prosecutors have de facto power to adjudicate most cases almost entirely without accountability. Prosecutors have the power to drive up the risk of losing a trial by jury through the charges they levy or threaten to levy.
If a defendant will not accept a deal, prosecutors have the ability to stack on extra charges. Simply break the offense down into multiple sub-offenses that can each be charged separately as its own offense, thereby multiplying the maximum penalty, and perhaps also the mandatory minimum penalty, for which the accused is at risk.
Not enough? Look for a weapon! Completely victimless firearms-related charges can trigger mandatory minimums simply for “possession” of a weapon during the commission of another entirely unrelated offense. And “possession” can be defined extremely loosely to mean someone else’s weapon that happened to be present or a weapon being “present” but acres away from the location where the offense took place.
Still not enough? No problem! Maybe you were also “conspiring” to commit the offense for which you have already been charged. Perhaps you were “money laundering” in association with the alleged offense. Or maybe you were “trafficking” something. Or were you “racketeering”? Maybe some relatively low level or even entirely innocuous act you participated in can be twisted into a “terrorism”-related charge. Prosecutors have a large menu of charges to choose from to break defendants’ determination to exercise their Constitutionally-guaranteed right to trial by jury.
We see this prosecutorial abuse by stacking charges to coerce plea bargains time and time again. For example:
-Transform Now Plowshares peace activists Sister Megan Rice, Michael Walli, and Greg Boertje-Obed turned down a plea bargain and saw a high stakes, so-called “terrorism” charge added to their cases punitively increasing the maximum prison term for which they were at risk from 1 year to 20 or more years each.
-Activist Aaron Swartz chose to take his own life after being badgered by prosecutors who offered him four to six months in prison for a guilty plea, while threatening to seek over seven years in prison if he chose to go to trial.
-Two of medical marijuana provider Chris Williams’ business partners, Chris Lindsey and Tom Daubert, each received sentences with no jail time whatsoever. They accepted plea bargains in which they did not go to trial. Williams opted for trial by jury only to see charges stacked up so much that he was at risk for more than 80 years in prison. Post-conviction and pre-sentencing, the prosecutor came back to Williams with additional plea offers to persuade him not to appeal his case.
-And in an egregious abuse of power that ups the stakes dramatically for future defendants, even though Antwuan Ball, Desmond Thurston, and Joseph Jones were acquitted of a whole host of charges brought down on them by overzealous prosecutors, and were each convicted only of a single, victimless drug transaction, they are now serving from fifteen years to nearly two decades in prison, with the Supreme Court turning a blind eye to this unconscionable injustice.
These are very difficult decisions that defendants must make as they are backed into the corner by prosecutors who risk little themselves by their malicious actions. It can be very understandable if a person decides for their own sake they must avoid a jury trial due to the extreme risk involved. But this prosecutorial abuse will only continue if left unchecked. We very deeply appreciate and are encouraged that more and more people are starting to have these kinds of conversations.