In yesterday’s New York Times Sunday Review, Michelle Alexander has a provocative column called “Go toTrial: Crash the Justice System.” Alexander has a book out called The New Jim Crow: Mass Incarceration in theAge of Colorblindness, which argues that the outlandish rates at which we incarcerate African-Americans and Hispanics has created a new system of segregation, based on legal discrimination against people with criminal records. (Full disclosure: I have not actually read the book, although it’s on my list!)
In her column yesterday, Alexander makes a proposal. At the moment, less than 10% of criminal defendants ever make their case in front of a jury; the rest take plea deals that often destroy their future prospects for jobs, housing, social services, and other necessities. If more people accused of crimes actually demanded a jury trial rather than taking a plea deal, the courts would be unable to handle the increase. Then, Alexander says, there would be ”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.”
While I share Alexander’s desire for serious criminal justice reform, recent history suggests a major problem with her idea. Nearly 50 years ago Frances Fox Piven and Richard Cloward made a similar proposal about the welfare system. In the 1960s, many people who were eligible to receive welfare benefits never applied for them, or applied and were wrongfully rejected. If more of those people actually demanded the benefits to which they were entitled, Piven and Cloward predicted, the insufficiently-funded welfare system would collapse under the weight of the demands and policymakers would be forced to establish a new, more equitable, more sustainable system of social provision.
Unfortunately, something different happened. In the 1960s and early 1970s, more people did demand the welfare support for which they were eligible. The number of welfare recipients increased dramatically (although there were also other reasons for the increase), as did the percentage of eligible people who actually received benefits.
But then there was a major backlash against welfare in the 1970s. Much of the New Right (whose legacy is the Tea Party) was mobilized by anger about increasing government spending on social services, especially welfare and other income supports. The federal government and the states began a decades-long effort to make welfare harder to get and more punitive to its recipients. This culminated in a major overhaul of the welfare system in 1996 that undercut the assistance programs that had supported millions of low-income Americans for six decades. Piven and Cloward’s proposal was doomed by many of the same social dynamics that, I think, would doom Alexander’s: racism, hostility towards the poor and minorities, and the belief that the people trapped in the system “deserve what they get.”
Alexander is absolutely right that increased numbers of jury trials would place more stress on our deeply flawed criminal justice system. But what’s to say that wouldn’t just result in longer delays before trial, ever-larger workloads for public defenders, and even worse outcomes for defendants? The criminal justice system is already overloaded; stressing its resources even more won't solve that problem. I’m all for dramatically reducing the number of people trapped in our so-called justice system, but I think history suggests that this isn’t the way to do it.