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?”
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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.
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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).
Repetition Of Usurped Government Powers Rendered Unconstitutional.
Unconstitutional usurpations by one branch of government of powers entrusted to a coequal branch are not rendered constitutional by repetition.
The United States Supreme Court held unconstitutional hundreds of laws enacted by Congress over the course of five decades that included a legislative veto of executive actions in INS v. Chada, 462 U.S. 919 (1982).
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 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.”
Michelle Alexander is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”
Jury Nullification Justice
A society that ignores or downplays Liberty is a culture that has lost its purpose. In such a regime, the people are relegated to the whims of the State and every citizen is at risk of criminal prosecution.
Imagine the most evil attorney, like John Milton from The Devil’s Advocate movie, as a DA.
The irony that the initials for a District Attorney are the same as the title of the script should not be lost.
Al Pacino’s Speech could be given in any courtroom by a zealot persecutor as a closing statement.
Charging God for the injustices of the world, by a government lawyer and equating the accused with such crimes, gives new meaning to John Milton’s classic Paradise Lost.
The justice system has little to do with dispensing righteous responsibility.
What is the alternative to a kangaroo court of facilitator judges for lying state prosecutors? Historically, a verdict decided by jury is the greatest protection that any defendant can rely upon.
The video, A Layman’s Guide To Jury Nullification provides an instructive analysis how a jury of ordinary citizens possesses the legitimate authority to judge both the law and the facts in a case.
The Fully Informed Jury Association provides tremendous resources, links and information on the rights and responsibilities of jury duty. The following list of reports grants permission to copy and distribute each of the documents, if each document is reproduced without modification.
Justice BYRON WHITE (Taylor v. Louisiana, 419 US 522, 530 (1975)): “The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”
THEOPHILUS PARSONS (2 Elliot’s Debates, 94; 2 Bancroft’s History of the Constitution, p. 267): “If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty, — For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.”
4TH CIRCUIT COURT OF APPEALS (United States v. Moylan, 417F.2d1006, 1969): “If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence…If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”
ALAN SCHEFLIN and JON VAN DYKE (“Jury Nullification: the Contours of a Controversy,” Law and Contemporary Problems, 43, No.4, 1980): ): “The arguments for opposing the nullification instruction are, in our view, deficient because they fail to weigh the political advantages gained by not lying to the jury…What impact will this deception have on jurors who felt coerced into their verdict by the judge’s instructions and who learn, after trail, that they could have voted their consciences and acquitted? Such a juror is less apt to respect the legal system.”
In the spirit of Jury Rights Day 2013, another video provides added insight into the excesses of imperial court arrogance and the way that juries can contravene abuses from the bench, from state or local government attorneys and Department of Justice agents. The incomparable champion for Liberty and Justice, Lysander Spooner in An Essay on the Trial by Jury, could not be more profound as he traces the tradition of the jury system.
That all these courts were mere courts of conscience, in which the juries were sole judges, administering justice according to their own ideas of it, is not only shown by the extracts [*79] already given, but is explicitly acknowledged in the following one, in which the modern “courts of conscience” are compared with the ancient hundred and count courts, and the preference [*80] given to the latter, on the ground that the duties of the jurors in the one case, and of the commissioners in the other, are the same, and that the consciences of a jury are a safer and purer [*81] tribunal than the consciences of individuals specially appointed, and holding permanent offices.
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Such horror for the privileged class of esquire barristers practicing – The Butchered Law.
So, when activist James Babb, from that previously cited, Fully Informed Jury Association, places informative billboards at Metro stations near the courts telling passersby about jury nullification, the ancient right of jurors to judge both the facts and the law, the legal establishment shutters in fear that their corrupt gatekeeper system will be overturned.
“Jury nullification no doubt infuriates prosecutors, judges, and indeed all the petty tyrants of officialdom. Genuine democracy generally has this effect.
Our ruling class is pleased to call the farcical, heavily gamed elections periodically held to confirm them in power “democracy,” but the power of the jury to disregard the law and do justice as they see it represents genuine democracy, that is, demokratia, or people power.
Indeed jury nullification represents one of the few remaining bastions of genuine democracy in our technocratically managed society.
It must be truly maddening for the legal technocrats to have their pompously ridiculous nonsense overthrown by a gaggle of mere citizens lacking, as they often do, fine degrees and prestigious titles.
And so they try and try to quash information about the real point of juries — deciding upon a just verdict — in order to render them passive and easily controlled, to turn them from real, functioning juries into inanimate totems used as props for the kabuki shows that we are assured are “fair trials.”
Currently in the news is a great lesson. A courageous jury sends a clear message to a fraudulent prosecution and a politicized court. From Pro-Gun Sheriff Found Not Guilty, “jury nullifies false arrest of Nick Finch who supported Second Amendment. After closing arguments by prosecutors and the defense, the jury took less than 90 minutes to reach its verdict.”
However, before sincere citizens declare victory over black robe magistrates and tyrannical District Attorneys, the New American raises further concerns in,
“Despite Finch’s acquittal, the question remains why a duly elected, constitutional sheriff was arrested for the actions he allegedly took. Why was Sheriff Finch not contacted by the FDLE or the governor and asked to answer the charges against him in a more disciplinary and less overtly legally hostile manner?
Will Scott and his successors use the Finch case as precedent for the assumption of the power of approval over voters’ election of county sheriffs?
Will every act of every one of those sheriffs in the 67 counties in the Sunshine State be subject to summary dismissal should they do something that doesn’t sit well with the governor or his wealthy campaign supporters?”
The Sheriff Has More Power Than The President Of The United States In His County Governor Has No Power To Remove A Sheriff Nor Reinstate. This Was A Nothing More Than A Sham Showcase Against The Powers Of The U.S. Sheriff.
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SARTRE – November 4, 2013
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