More than 90 percent of criminal trials never see a jury; they end in plea bargains and guilty pleas. Moreover, thanks to a series of Supreme Court decisions enabling prosecutors to threaten defendants with harsh sentences unless they take a plea, defendants are often pressured to plead guilty for fear that asserting their innocence could cost them many, many more years in prison. In the face of this reality, civil rights attorney Michelle Alexander proposes a provocative tactic — shut down the criminal justice system with an unmanageable wave of jury trials:
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.
Alexander’s proposal is intended to highlight the unfairness of a system where prosecutors can strongarm criminal defendants — even innocent defendants — into prison time and felony convictions. Many of these defendants, Alexander explains, are mothers forced to choose between a guilty plea and leaving their children without a parent for years.
Yet her proposal also highlights another, equally disturbing problem facing out judicial system — the fact that there simply are not enough judges to swiftly and fairly apply the law. Indeed, several jurisdictions already live under the nightmare Alexander described despite no revolt from defendants pleading not guilty. In Arizona, federal felony case filings grew nearly doubled between 2008 and 2010, even though the number of judges decreased in that time. In Texas, one federal judge warned that his docket was so overloaded he could give felony defendants facing “years and years in a federal prison” about as much time as a “traffic judge” who handles $100 or $200 fines could give to his cases.
And, unlike the problem Alexander hones in on, which arises as much from excessive penalties for minor drug crimes as it does from prosecutors wielding too much power, the federal vacancy crisis could be fixed without significant legislation or even much debate by lawmakers. Seventeen of President Obama’s judicial nominees have cleared the Senate Judiciary Committee — all but two of them unanimously or with Tea Party Sen. Mike Lee (R-UT) as the only objector. Lee, who also believes that Social Security and Medicare are unconstitutional, recently announced that he would oppose every single Obama nominee, so his vote is hardly a sign that any of these nominees are the least bit controversial.
America needs judges for the law to function effectively. The Senate needs to confirm each of these seventeen nominees. Right now.