Civil Protest Through Refusing to Plea

Michelle Alexander, a lawyer and professor at Ohio State, wrote an editorial in The Times yesterday, Go to Trial: Crash the Justice System. She provides some background on the current crisis in the American justice system, and how few accused actually realize their constitutional right to a jury,

 …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 [jury] 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…

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.

Canadians also have a constitution right to a jury under the Charter,

11(f) Any person charged with an offence has the right except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

University of Windsor’s David Tanovich has gone further, and states in Jury Selection in Criminal Trials: Skills, Science, and the Law that jury trials are an integral part of the fabric of democracy. Individuals charged with summary offences or s. 553 offences cannot be tried by jury. Those charged with an indictable offence may elect for a judge in Provincial Court, by judge in Superior Court, or by judge and jury in Superior Court. The most serious offences are always tried by judge and jury.

But what is the public to do when they realize the likelihood of them ever receiving a jury trial is slim?

Alexander continues to consider the question posed to her about what would happen to the system if everyone, or even a significant portion of the accused, refused to plea bargain and demand a jury trial instead,

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.

The likelihood of a mob of accused actually coordinating an effort like this is unlikely, unless they were possibly all arrested during the same incident of civil disobedience. And it’s in that context, where the public feels that the justice system is not properly serving the needs of the community, that such a coordinated effort may actually occur.

In preparation, justice departments should prepare for mass protest movements and the possibility that the courthouses will become more congested than usual by building in contingency locations and reserve Crowns (likely from existing per diem rosters). If the true cost of criminal charges was felt by the justice system, perhaps there would also be political reconsideration of mandatory minimums and construct of mega-prisons in Canada.

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