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

17 Pages Posted: 27 Feb 2015  

John H. Blume

Cornell Law School

Date Written: February 25, 2015

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.

Keywords: Criminal procedure, plea bargaining, criminal justice reform

Suggested Citation

Blume, John H., How the 'Shackles' of Individual Ethics Prevents Structural Reform in the American Criminal Justice System (February 25, 2015). Available at SSRN: https://ssrn.com/abstract=2570383 or http://dx.doi.org/10.2139/ssrn.2570383

John H. Blume (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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