In Sunday’s New York Times, Michelle Alexander advocates a kind of plea-bargaining strike to address the incarceration crisis. She writes:

The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation.

I have argued that incarcerating 2.3 million people is unconscionable; that if we are going to put all those people in jail, we should do it as jurors; that an underlying reason for the incarceration crisis is public disengagement from civic life; and that we tolerate the vast prison-industrial complex because we are able to ignore it, since we don’t have to participate in, or even read about, jury trials. (Only about one in 40 felony charges go to trial nowadays.)

If many defendants started demanding trials, that would put us back in the jury room until we hollered for sentencing reform. I would regard that as a good result, but it seems awfully unlikely. They call it the “Prisoner’s Dilemma” for a reason. People always have difficulty coordinating high-stakes behavior, but the situation of a criminal defendant makes it harder. Since the middle ages, they have been separated to bargain individually with prosecutors precisely to prevent them from coordinating. Defendants would be better off if they all demanded trials. Each individual would be worse off if he alone demanded a trial and it yielded a “Three Strikes” conviction that he could have avoided if he’d bargained.