In Colorado prisons and prisons across the country, overcrowding is a massive problem. Part of that is because of drug laws, many carrying mandatory prison sentences even for non-violent or minor first-time offenders. However, another issue is how plea bargaining pushes defendants into accepting prison sentences where the evidence of their guilt may have been tenuous at best. Although prosecutors do not have the resources to push all these cases through trial, they are able to convince defendants to plead out because the possible sentences at trial are so dramatic that defendants are unwilling to accept the risk. This causes two separate but equally disconcerting problems: the prosecution’s case is frequently not put to the test. Additionally, all the folks that are sent to prison without even a peep of voiced resistance (a mere allocution is the entirety of their day in court) are filling up the prisons and contributing to the overcrowding problem. One activist proposed a solution in yesterday’s New York Times:
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.”
This seems to be a pretty ethereal solution to a problem that is a lot more pressing than proposed. When the proposed solution does nothing beyond “create chaos,” what in the world is the end-game? How do we know the response won’t be to simply abolish jury trials through constitutional amendment (there’s a pretty strong pro-punishment sentiment still)? In Colorado, the response to the rising costs of prosecuting traffic tickets in some jurisdictions was to just abolish discovery and plea bargaining.
The other problem is a dramatic ethical dilemma for those who would organize this protest. Obviously no defendant is going to be the first to volunteer to risk a longer sentence to go to trial and screw up the system. Somebody has to be in charge of setting the whole thing up. And it would almost have to be attorneys: the lawyers who advise defendants and whom defendants trust to give them good legal advice. The problem here is that attorneys have ethical obligations of competence to the individual client. An attorney could not ethically be part of a movement to give advice that leads a client to a worse outcome for a greater larger movement.
Colorado Prisons Blog 
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