Criminal Justice

How Criminal Defendants Could Crash and Reform the System: Band Together and Refuse Plea Bargains

Criminal defendants could hold the key to reforming the justice system—if they are willing to put their lives on the line.

Here’s how: Band together and refuse to accept plea bargains. That’s the observation of Susan Burton, a former crack addict who went to jail and eventually got help after her release. Her idea is recounted in an op-ed for the New York Times by Ohio State law professor Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

Alexander notes that more than 90 percent of criminal cases end with guilty pleas. Stiff sentences have shifted power from judges to prosecutors, who can exact plea bargains with the threat of potentially stiffer punishments for going to trial.

“The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control,” Alexander writes. “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.” A crash could force a public conversation about justice in America, Alexander says, but she is uneasy about the idea.

Burton, who runs a group that helps and advocates for former convicts, told Alexander she isn’t saying that defendants should refuse to accept plea bargains. After all, going to trial can mean a lengthy sentence.

“I’m saying we ought to know that it’s an option,” Burton said. “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.”

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.