In my criminal defense practice, I am constantly presented with the question of whether to settle a case or go to trial.  I love to try cases, but sometimes it is simply not in the best interest of the client to risk a trial.  And sometimes the opposite is true:  the case is so over-charged, the deal that is offered is so bad, that sometimes you simply have to try your case before a jury.  This issue is one that every criminal defense lawyer I know has to deal with.

In a New York Times piece this past weekend, Michelle Alexander writes about how things would be different if instead of only 10% of all criminal cases going to trial, 90% of all defendants charged with a crime actually exercised their constitutional right to a trial by jury.  She writes about how that would crash the system, and perhaps bring about a change where the prosecutors were forced to scale back dramatically the number of criminal cases charged:

“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.”

To see the whole article, go to  http://tinyurl.com/7e2wuaj

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