A case for fully exercising sixth amendment rights

[Cantih]

http://www.nytimes.com/2012/03/11/op...stem.html?_r=1

AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “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? Couldn’t we bring the whole system to a halt just like that?” The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.
Her odyssey began when a Los Angeles police cruiser ran over and killed her 5-year-old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the “war on drugs,” and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug-related offenses. Every time she was released, she found herself trapped in an under-caste, subject to legal discrimination in employment and housing.
Fifteen years after her first arrest, Susan was finally admitted to a private drug treatment facility and given a job. After she was clean she dedicated her life to making sure no other woman would suffer what she had been through. Susan now runs five safe homes for formerly incarcerated women in Los Angeles. Her organization, A New Way of Life, supplies a lifeline for women released from prison. But it does much more: it is also helping to start a movement. With groups like All of Us or None, it is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights.
I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime?
“Yes, I’m serious,” she flatly replied.
I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. 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. Most people charged with crimes forfeit their constitutional rights and plead guilty.
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.
In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.
The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.
No wonder, then, that most people waive their rights. Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.
On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”
The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”
Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.
In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”
Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

I've always thought some things would come down to requiring mass civil disobedience to change, but this is particularly amazing.
Could this method manage to halt the MP/RIAA? By overloading the system, stopping real criminal trials, produce a "quit this shit" effect on them?

[Mazmaz]

That shit cray

[Seanr]

It would work with a lot of things that aren't right in this country, but as we saw in that other thread (the one about nonpaid orientation/training job session), it only works if enough people are willing to put their comfortable/miserable lives/lifestyles on the line and stick their dick out there. There are some who have shitty lives and believe there can be no change because that how the system works and they just supposed to accept it and it's best not to rock the boat. Look at the NDAA recently signed, not enough people are willing to seriously protest and take it to the house with shit like that looming over their heads.

[Lucavi]

^ It would take a tremendous leap of faith to get it done, but the article was a fascinating read. I had no idea that life imprisonment was legal for first time drug offenses. That's absolutely absurd, even as a scare-tactic...

[Yugl]

It's nothing the system cannot handle and issue isn't 'new' either. In most cases, prisoner's dilemma will hold. Water down sentences enough and you can convince a person to break the hold because the plan is unlikely to do anything. Depending on implementation, conspiracy charges will follow.

Moreover, despite the article's assertion that pleas have transferred power from judges to prosecutors, most judges push for a plea where possible. The entire point, as mentioned, was to cut down on costs (taxes!) and prevent docket building (Same reason we made appellate courts). Consequently, they end up pissing off the judge which is stupid.

Another point to consider is that most trials implement harsher sentences than would have been obtained through pleas (duh), so prosecutors are actually mitigating the high sentences the article mentions. Even if they were to ignore the options available and call for an amendment, that's more likely to damage the people than "the politicians" precisely because the amendment is for the purpose of abridging rights.

If they avoided working with the current system or implementing a system, they'll probably enact a Nuremberg "Top criminals only" policy. Interestingly, announcing this system would create a new prisoner's dilemma and the plan could fall through that way. Either that, or you end up with an ineffective criminal system or one that more blatantly "goes through the motions" to lock you up. It's not an effective strategy and it's not "returning rights" or "amending the system" as the article implies.

[hey]

Unless I'm reading this wrong, i don't think they actually want to put a stop to plea bargaining. Instead they simply want to use it in order to get attention, to hopefully bring about other changes. Plea bargaining is typically the best option for everyone involved, except perhaps the falsely accused.

[Cantih]

It's nothing the system cannot handle and issue isn't 'new' either. In most cases, prisoner's dilemma will hold. Water down sentences enough and you can convince a person to break the hold because the plan is unlikely to do anything.

Except remember, with the prisoners dilemma the optimal choice is for players to stick to silence (or in this case not plea and punish the current system). If both players go for the rational personal optimization & flip on each other (everybody takes the plea and the status quo remains), the only winner is the arbiter, who takes both of them.

And watering down the sentence can only go so far, because as the article says, the truly onerous bits aren't the sentence itself, but systematic effects that accompany it.

Anyways, the situation is more complicated than a simple Prisoner's Dilemma, so that line of argument is silly.

Either that, or you end up with an ineffective criminal system or one that more blatantly "goes through the motions" to lock you up. It's not an effective strategy and it's not "returning rights" or "amending the system" as the article implies.

If the justice system does that, it will temporarily increase rights abuses (temporary being a few years to a few decades, probably), but it will also increase public resentment of the system for doing it, which will increase demand to truly get the system working as it should.

[Yugl]

Except remember, with the prisoners dilemma the optimal choice is for players to stick to silence (or in this case not plea and punish the current system). If both players go for the rational personal optimization & flip on each other (everybody takes the plea and the status quo remains), the only winner is the arbiter, who takes both of them.

Yes? That's the point.

And watering down the sentence can only go so far, because as the article says, the truly onerous bits aren't the sentence itself, but systematic effects that accompany it.

I agree that the aftermath can be more devastating than the sentence itself. I have been in circumstances where that was the case. However, watered down sentences can be quite compelling. In the specific example mentioned, if pressed enough and willing to wager sentences as leverage, they could reduce the sentence to a misdemeanor. As 'silly' as you consider the argument, it's a necessary condition that the dilemma not hold for their plan to work.

If the justice system does that, it will temporarily increase rights abuses (temporary being a few years to a few decades, probably), but it will also increase public resentment of the system for doing it, which will increase demand to truly get the system working as it should.

Not really. If people aren't railing against it enough now, all they have to do is temporarily increase abuses and then call for a return to the previous norm (i.e. what we have now). There's nothing to guarantee that scaling will transcend the current situation.

[Shuvo]

And if everyone moved their money from a bank into a credit union it would also force change for the better. But, getting only a few hundred K people to do so during the height of OWS was really difficult, and they didn't have anything to lose besides a few hours of their time to transfer the money. Now getting people to risk a long term jail sentence for this movement? Not happening.

[Linliel]

Sorry, but as a lazy non American, what's the sixth amendment again? It was sort of alluded to but not explicitly stated in the quoted text.

[hey]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

.

[Mazmaz]

Why speedy?

[Acturus]

Why speedy?

Indefinite detention is frowned upon in America.

Or at least, it used to be.

[Lucavi]

I was gonna say something ignorant like "Guantanimo~!!", but I realized that they aren't citizens and aren't covered by the constitution.

[Moridam]

I was gonna say something ignorant like "Guantanimo~!!", but I realized that they aren't citizens and aren't covered by the constitution.

Where did you get that idea? Non-citizens, including those held at Guantanamo, absolutely do have constitutional rights.

[zoobernut]

Where did you get that idea? Non-citizens, including those held at Guantanamo, absolutely are supposed to have constitutional rights.

Fixed for accuracy.

[Deadgye]

Where did you get that idea? Non-citizens, including those held at Guantanamo, absolutely do have constitutional rights.

There's human rights, and then there's rights granted to citizens of the US by the Constitution of the United States.

Ethically we should hold everyone to the same regard and laws that we hold ourselves, but legally? Nope.

[archibaldcrane]

Non citizens in US territory are covered by the constitution...

The exception is for "wartime", which is how things like guantanamo continue to operate.

Sent from my Samsung Galaxy S 4G using Tapatalk

[Sera]

Indefinite detention is frowned upon in America.

Or at least, it used to be.

yeah, they're working on that now

[greenhills]

so i asked a lawyer acquaintance about this since this post made me curious. they seemed to think something like this would never really have too big of an effect since: a. what is the definition of a speedy trial? people are already getting screwed out of this right anyways. & b. would be difficult to actually get the numbers needed to really stop the system.

oh well, is a good thought though.