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?”
Apparently so, since 90% of all criminals currently plea-out instead of having a trial because harsh minimum mandatory sentences have become the rule. We appear to have slowly grown beyond the State’s ability to administer justice “within the system” that defines itself and plea-bargaining has become the defacto-method of saving the State money. If your mandatory minimum sentence would be 5 years and they’re dangling a plea that “wins” you 2 years, you’re probably going to take it even though you have the “right” to a trial. If no one takes the deal, then everyone must go to trial. It would be an interesting massive-multiplayer prisoner’s dilemma—do we make it harder for the State to administer justice or force its hand into making itself more efficient and likely, more totalitarian than it ever has been before. That is, until you also teach everyone about jury nullification. Of course, all bets are off no matter what, because the State always redefines itself away from the people’s control whenever the people attempt to control it.