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- Title
How the "Shackles" of Individual Ethics Prevent Structural Reform in the American Criminal Justice System.
- Authors
Blume, John H.
- Abstract
The core critique of the modern American Criminal Justice System is that the legislative and judicial expansion of criminal law in the 1960s and 1970s led to prosecutorial overcharging and has resulted in mass incarceration. Prosecutors are able to extract guilty pleas in virtually all criminal cases: roughly ninety-five percent 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 system's inability to provide jury trials to even a significant percentage of criminal defendants, mass refusal of defense lawyers to negotiate guilty pleas would result in a much needed paradigm shift in criminal sentencing. This essay will then discuss obstacles to this type of collective action, as well as why, given the realities of representation of criminal defendants, it should be a tool available to criminal defense lawyers.
- Subjects
UNITED States; CRIMINAL justice system; CRIMINAL law; MASS incarceration; CRIMINAL defendants; DEFENSE attorneys
- Publication
New England Journal on Criminal & Civil Confinement, 2016, Vol 42, Issue 1, p23
- ISSN
0740-8994
- Publication type
Article