A recent New York Time article raised the issue of shutting down the criminal justice system by refusing to accept a plea offer. That’s a simplification of the article’s premise, but an accurate one. The article was well written and raised important issues. According to the author, “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.” I’ll take her word on the statistic for the time being, since my experience would tend to support those numbers. The crux of the article is less dramatic than its title may let on however; its not claiming that a plea bargain is never in a defendant’s best interest, but the author, through her interviewee, makes the case that often times, it is not. No disagreement on that point.

Legal practice is intentionally adversarial. It’s no less the case in criminal matters, where often, defense attorneys are paired against the same prosecutor. There is little chance that the prosecutor will forget if they’ve been beaten on a case. And no one likes to be beaten. Lawyers are competitive types, the sort who do not lose elegantly. And so, if a defense attorney gets the best of a prosecutor on one occasion, it may be that the next time around, she’ll get the best of the defense. And the client. Whether or not that client in particular deserves to bear the brunt of past angst. Gamesmanship can become paramount over serving the interests of justice and seeking truth. This is inevitable given that there are no perfect people. As a point of clarification, I do not intend to paint with a broad brush, and do not mean to suggest that all prosecutors see their jobs as a game of sorts. That would be an unfair generalization. Still, I’ve no doubt that some do.

When the author writes, “The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control,” it rings a certain, unfortunate truth, which requires some qualification. Defendants are faced with a choice between “the lesser of two evils,” without any certainty of which one is actually the lesser evil. That’s no different than anyone else who decides anything in life. Where to go to school, who to marry, which car to buy. Every choice comes with a potential downside; a regret. All people can do is make the best decision with the information they have available at the time. There is a cost-benefit analysis which must be weighed by defendants. “If  I go to trial, these potential penalties await. If I accept the plea, a jury could walk me.” True. What are the possibilities of either, given the evidence available? That’s what attorneys help sift.

The author states that “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.” Perhaps that is true enough. But should defendants aspire to collectively organize a mass exercise of constitutional rights (Occupy style), solely for the purpose of making a statement and shutting the down judicial system? Not without weighing the effects of such exercise (assuming that exercise comes in the form of going to trial) to them on an individual level. Each case is different, each person is different, and any collective action is likely to benefit some far more than others. In other words, its likely to harm some far more than others.

It may be true that a change in the criminal justice system will start with one person being willing to “risk their lives.” But as is always the question on issues of this sort, who goes first?

Check out the article if you haven’t already.