Politics and Acquiescence

There is a thought provoking Op-Ed in The New York Times today. You can find it here. The specific topic is plea bargaining in the U.S. criminal justice system and what would happen if those accused of crimes refused to take part in the practice and instead insisted on exercising their constitutionally protected rights. Prosecutors in our system of justice have the upper hand. Judges are constrained by mandatory sentencing rules. Politicians pander to public fears. Those accused of crimes typically are made an offer they cannot refuse. And, once convicted of a felony, they are subject to all of the legal repercussions. They avoid the short term risk of draconian punishment in exchange for the long term hardship of never being treated equally again. As the examples in the essay suggest felon disenfranchisement is the tip of the iceberg.

But what would happen if there was a widespread refusal to acquiesce?

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.

Of course, there are massive problems of coordination blocking the way. There are informational and power asymmetries galore. And there is no guarantee whatsoever that, if the many were to withhold their acquiescence, the powerful and well-off would not simply insist on implementing some sort of emergency powers to deal with the ensuing difficulties. Anyone want to give odds?

The criminal justice system, of course, is not the only one that presumes the acquiescence of the population to a stacked deck. The coordinated repression of Occupiers in cities across the nation, is perhaps an indication of what would happen if citizens withheld their acquiescence. You might imagine that has little to do with you - law-abiding citizen that you are. But I recently posted on a novel by José Saramago that raises the same issue in the context of a fictional national election. What would happen if large numbers of Americans cast empty ballots simply because the options on offer were an embarrassment?