How the 'Shackles' of Individual Ethics Prevents Structural Reform in the American Criminal Justice System

Abstract

The core critique of the modern American Criminal Justice System is that the legislative and judicial expansion of the criminal law in the 1960's and 1970's has led to prosecutorial overcharging which has resulted in mass incarceration. Given the current state of affairs, prosecutors are able to extract guilty pleas in virtually all criminal cases: roughly 95% of all criminal defendants plead guilty. This essay posits that the focus on individual ethics, i.e., the criminal defense lawyer’s obligation to obtain the best result for each individual client, robs the defense bar of the most powerful tool available to them: the ability to collectively refuse to plead guilty. Due to the criminal justice’s systems’ inability to provide jury trials to even a significant percentage of criminal defendants, mass refusal of defense lawyers to negotiate guilty please would result in a much needed paradigm shift in criminal sentencing. The essay will then discuss obstacles to this type of collection action, as well as why, given the realities of representation of criminal defendants, it should be a tool available to criminal defense lawyers.