The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [53]
Children caught up in this system are the most vulnerable and yet are the least likely to be represented by counsel. In 1967, the U.S. Supreme Court ruled in In re Gault that children under the age of eighteen have the right to legal assistance with any criminal charges filed against them. In practice, however, children routinely “waive” their right to counsel in juvenile proceedings. In some states, such as Ohio, as many as 90 percent of children charged with criminal wrongdoing are not represented by a lawyer. As one public defender explained, “The kids come in with their parents, who want to get this dealt with as quickly as possible, and they say, ‘You did it, admit it.’ If people were informed about what could be done, they might actually ask for help.”67
Bad Deal
Almost no one ever goes to trial. Nearly all criminal cases are resolved through plea bargaining—a guilty plea by the defendant in exchange for some form of leniency by the prosecutor. Though it is not widely known, the prosecutor is the most powerful law enforcement official in the criminal justice system. One might think that judges are the most powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor, far more than any other criminal justice official, who holds the keys to the jailhouse door.
After the police arrest someone, the prosecutor is in charge. Few rules constrain the exercise of his or her discretion. The prosecutor is free to dismiss a case for any reason or no reason at all. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists—a practice known as overcharging.
The practice of encouraging defendants to plead guilty to crimes, rather than affording them the benefit of a full trial, has always carried its risks and downsides. Never before in our history, though, have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe. When prosecutors offer “only” three years in prison when the penalties defendants could receive if they took their case to trial would be five, ten, or twenty years—or life imprisonment—only extremely courageous (or foolish) defendents turn the offer down.
The pressure to plead guilty to crimes has increased exponentially since the advent of the War on Drugs. In 1986, Congress passed The Anti-Drug Abuse Act, which established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first-time drug offense would merit no more than six months in jail, if jail time is imposed at all.68 State legislatures were eager to jump on the “get tough” bandwagon, passing harsh drug laws, as well as “three strikes” laws mandating a life sentence for those convicted of any third offense. These mandatory minimum statutory schemes have transferred an enormous amount of power from judges to prosecutors. Now, simply by charging someone with an offense carrying a mandatory sentence of ten to fifteen years or life, prosecutors are able to force people to plead guilty rather than risk a decade or more