My volunteer experiences in Philadelphia have led me to work with dozens of members of the city’s current and former prison population. In particular, my current role as a tutor in a North Philly juvenile facility has allowed me to forge bonds with kids only slightly younger than myself, and I always look forward to the conversations we have there. As soon as I arrive on Wednesday mornings, I’m bombarded with questions: It’s raining outside? You got class today? What college you go to? Is college hard? They got bitches over there? You get bitches? What’s the parties like? You smoke? You ever been in the back of a police car? What part of Philly you from? Oh, you from DC? You know Shy Glizzy? How much you get paid to do this? What they tell you about us? They tell you we were bad kids?

I’m not allowed to ask them similarly personal questions in return, but many of the kids volunteer all kinds of information, opening up to me about everything from their frustration with being separated from their families to their triumphs in smuggling in contraband like cellphones. In swapping stories, one common thread between the kids’ interactions with the criminal justice system emerged: none of them have ever had a trial.

Of course, it is common knowledge that a higher prevalence of plea bargains have played a role in the expansion of incarceration in America. The phenomenon is usually explained like this: politicians wanted to get tough on crime and passed mandatory minimum sentencing laws. In practice, prosecutors used mandatory minimums as a bargaining chip to intimidate defendants into pleading guilty to a lesser charge. The prosecutor gets a win and the defendant gets to go home after a few years instead of wasting his whole adult life in prison. The disturbing implication is that innocent people plead guilty to minor charges because they do not want to risk their lives at trial. As a consequence, they are burdened by criminal records for the rest of their lives, and in many cases, still have to do hard prison time.

The second implication is often overlooked, but is equally as scary: America’s incarceration flows are now so massive that they have outgrown the trial system altogether. Many kids in prison were offered – and accepted – deals from the state even in cases where they were caught red-handed or knew that the state could prove their guilt. That behavior signals that the state does not want trials, even trials it knows it will win with near certainty.

A few weeks ago at a Penn Dems sponsored event, I had a chance to speak with former defense attorney and current mayoral Chief of Staff Everett Gillison, who confirmed my anecdotal evidence. Yes, he said, the trial system has almost completely eroded and no, he did not believe it was possible to restore it. He was unequivocal in his replies. There are simply not enough judges or lawyers in the country to ensure that everyone charged with a crime has their Fifth Amendment right to due process of law. In order to incarcerate the population on an unprecedented scale, a criminal justice system with limited resources must find ways of circumventing the Constitution.

Trials, while their record of delivering justice is far from perfect, remain an important bulwark in protecting the civil liberties of Americans. They are grounded in a basis of facts, evidence, and proof. They reveal nuance, uncover details, and consider circumstance. They are focused on one individual, the defendant, rather than broad and inflexible policy prescriptions that apply to millions of people. All of these characteristics make trials indispensable to the preservation of justice. Take them out of the equation, and justice becomes a negotiation based on leverage instead of a debate based on evidence. In any negotiation between the state and an individual – especially a marginalized individual – the state’s advantage in leverage is so great that it can coerce its opponent into pretty much any deal it wants. That is not justice. That is power, raw and ugly.

As a result of such draconian crime laws, the justice system has become so clogged with petty criminals that its ability to deliver on its Constitutional promises has been compromised. The accused do not enjoy the right to public and speedy trials as those who refuse plea bargains often fester in jail for years before being granted their day in court. The justice system is trampling on Americans’ Fifth, Sixth, and Eighth Amendment rights, and if the critique extends to the surveillance state’s illegal monitoring and seizure of information, the Fourth Amendment can easily be included.

I rarely make constitutional arguments, but I did this time because it highlights another instance of America’s refusal to abide by the moral code it wrote for itself. Jury trials are one of the fundamental institutions that underpin the American system of government, and they are not merely under threat; they are on the verge of extinction, especially for Americans who cannot afford elite private defense lawyers. When America pushes the boundaries of its own creation, something has to give.

One solution would be to expand the capacity of the country’s courts to the point where they can guarantee the rights of everyone accused of a crime. Another would be to divert many people from the criminal justice system entirely. Not every country uses arrests as a reflexive response to social problems. Many rely more heavily on rehab, mental health care, and more prudent policing to intervene in difficult situations. A third solution would be to have an honest and open national conversation about the merits of a trial system to evaluate its role in 21st Century America. The Constitution does not necessarily offer the best way forward, but America should not take its deviations from it lightly.

Instead, the country has done nothing. It has taken no action to restore the trial as an institution. Thankfully, Americans have started to take notice of the insidious forces driving mass incarceration and the erosion of the trial system. There is much work still to be done, however. Trials must be framed as inherently important to a just society and their preservation as a civil liberties issue. The justice system is massively overburdened, and America must show a commitment to fixing its root problems. Unfortunately, the government’s decision to circumvent it entirely has played a tragic role in sustaining the system of mass incarceration and denying Constitutional protections to the country’s most vulnerable.


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