Pubdate: Sun, 11 Mar 2012
Source: New York Times (NY)
Copyright: 2012 The New York Times Company
Author: Michelle Alexander
Note: Michelle Alexander is the author of "The New Jim Crow: Mass 
Incarceration in the Age of Colorblindness."


Columbus, Ohio - 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."
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