NO JUSTICE, NO PLEA!
SUBVERTING MASS INCARCERATION
THROUGH DEFENDANT COLLECTIVE ACTION

Andrew Manuel Crespo®

The American penal system is a system of massive, racially unjust
incarceration. It is also, 10 quote the US. Supreme Court, a “system of
pleas.” The latter drives the former, as coercive plea bargaining makes it
possible for the state 10 do two things that are otherwise hard to pull off at
once: increase convictions and sentence lengths. Mass incarceration is a
predictable result,

But while plea bargaining is intensely coercive when leveraged against
individuals, the system of pleas has a structural weak point. That Achilles’
heel is exposed once we sce people facing prosecution not as isolated
individuals but rather as a potentially collective community of power.
Organized 10 act together, this community has unique resources. Most
they have the power 1o say “not guilty” when asked “how do you
plead?” " If done together, this simple but profound act of resistance would
bring the penal system 1o a halt. Courts and prosecutors simply do not have
the resources 1o sustain mass incarceration while affording everyone
accused of a crime the constitutionally guaranteed right 10 a trial. This fact
is what makes plea bargaining so essential to mass incarceration in the first
place. Plea bargaining unions, with their implicit power to threaten plea
bargaining strikes, thus hold a potentially transformative power—a

* Morris Wasserstein Public Interest Professor of Law, Harvard Law School; Executive
Faculty Director, Instiute 0 End Mass Incarceration. This Essay was prepared for the
Colloquium enitled Subversive Lawyering, hosied by the Fordham Law Review and
co-organized by the Center on Race, Law, and Jusice and the Stein Center for Law and Edhics
on October 15-16, 2021, at Fordham University School of Luw. I am grateful (o Michelle
Alexander and Susan Burton for puttng their ideas into the world, and for embracing this
Turther exploration of their work. 1 reccived thoughttul feedback on this essay from Zohra
Ahmed. Yochai Benkler, Niko Bowie, Bennett Capers, Guy-Uriel Charles, Sandra Corres,
Manuel Crespo, Chris Desan, Premal Dharia, Dan Farbman, Bruce reen, Adsiaan Lanni,
Martha Minow, Daphna Renan, Bill Rubenstein, Guy Rubinstein, Ben Sachs, Abby Shafroth,
Jocelyn Simonson, Joan Steffen, Nick Stephanopoulos, and Brittany White, as well s from
participants in the Subversive Lawyering Colloquium, Duke Law School's Judicial
Administration Rounduable, and Harvard Law School’s fculy workshop. 1 am especially
grateful 0 Oren Bar-Gill, who has helped sharpen m thinking on this topic in each of our
many conversations over the years. Finall, | am grateful to Marshall Ganz, whose enduring
lessons about peaple, power, and democracy shape much of the thinking here

1999
decarceral power, a democratic power—that arises from the penal system’s
‘massive overextension

Susan Burton, a formerly incarcerated organizer, floated this idea in the
pages of The New York Times with Michelle Alexander one decade ago. In
the years since, it has never received focused academic attention and has
seen only sporadic and isolated attempis at implementation. This Essay aims
to conceptualize and test the limits of Burton’s idea, examining both its
promise and its hurdles while marking key questions for future exploration.

INTRODUCTION. 2000
1. EXPOSING THE HEEL 2004
A The System’s Massive Scale 2005
B. The System’s Concentrated Harms. 2007
C. The System’s Fragmentation 2000
D. The System’s (Conservative) Procedural Formalism ... 2011
1L PRISONERS’ DILEMMAS 2016
L. DEFENDERS’ DILEMMAS 2022
CoNCLUSION 2024

INTRODUCTION

Three years ago, I was sitting in the audience at an academic conference
in lower Manhattan. 1 had recently written a paper on plea bargaining, the
topic of the conference, and was slated to speak on the second panel. The
panel before mine opened the day with remarks from practitioners, including
a sitting federal circuit judge, a practicing public defender, and the head
prosecutor for a major city in the Pacific Northwest. It was intended to set
the tone for the rest of the day by asking the “big question.” Plea bargaining,
anecessary evil?!

listened with divided attention. In my mind, 1 had already answered that
question for myself. Evil, yes. Necessary, no—unless the goal is to sustain
American mass incarceration. Sitting in the third row, 1 jotted down some
final thoughts about my own upcoming remarks as the panel got underway.

But as the prosecutor on the panel spoke, my eyebrows went up and my
pen went down. I had been a public defender for a number of years before
becoming a professor. I'd had conversations with prosecutors about the
penal system before, including with some who had come to see it as deeply
flawed. Still, 1 was not used to hearing a sitting prosecutor—let alone a head
prosecutor for a major city—speak as candidly as this one was about what

1. Panel One at Peter L. Zimroth Center on the Administsation of Criminal Law Eleventh
Annual Conference: Plea Bargaining: Reforming an (Un)Necessary EVl? (Apr. 8, 2019)
[hereinafier Plea Bargaining Panel), hitps:/viw law.nyu educenters/zimothevens/plea-
bargaining (hiips/fperma.cc:PICI-GSK].

plea bargaining is and why it exists. He said three things in particular that
stand out in my memory today. years after the event
First, he was not shy about describing plea bargaining practices, including
those he had personally engaged in and that his office continued to deploy,
as fundamentally coercive. “The judge will ask the defendant, *Has anyone
made any threats or promises to you in order to get you to plead guilty?,™ he
recalled. reciting from memory a plea colloquy he hiad heard countless times
over a decades-long career. He then shared his consistent internal reaction
each time the question was asked: “In my mind, quietly, I was thinking, *0f
course we did! That’s what we've been doing for the last month.” The right
answer is *No, no one did that.” But it was all about threats and promises.”
Critics of plea bargaining say this all the time. To them (to us), plea
bargaining is a series of threats used to coerce people facing prosecution into
waiving their rights But prosecutors don’t usually say this part out loud.
Second, the prosecutor on the panel was forthright in answering the
conference’s big question with an unequivocal yes. “Plea bargaining.” he
said, “is necessary.” But here, too, his explanation was bracingly frank
“That's my water,” he said. “I can’t swim without it." The language was
figurative, but the sentiment was literal. “Like a fish defending water,
prosecutors,” he said, “cling to plea bargaining as a survival instinet”
We can'ttake 100 percent of these cases to trial. My office files about 7000
felony cases a year. We do four to five hundred rials. And we are packed.
Our people can't do more than that ... We've seitled on an equilibrium
in major city court systems where about a 3 percent trial ate is considered
ahealthy trial rate. And it’s really about all we can do.3

There again was the quiet part out loud. I was used to hearing plea
bargaining defended by its proponents and its administrators as a way to
promote individual responsibility, or perhaps even as a way to give people
charged with crimes the “benefit” of a lower sentence.4 I had not heard many
prosecutors describe it as a way to win vastly more convictions than could
ever be obtained in a system that actually afforded people the constitutional
“right to a speedy and public trial. s

And yet, while those first two remarks struck me with their candor, it was
the third that caught my attention most of all. He said it almost as an aside,
tacked onto another point: *1 always wondered what would happen if, in

. Donald A. Dripps, Guill, Innocence and Due Process of Plea Bargainis
57 Wt & MakRy L. Rev. 1343, 1343 45 (016) (analogizing plea bargaining 10 torure): Jo
. Langbein, Torture and Plea Bargaining, 4 U.Chi L Rix. 3, 3 (1978) (same); see also
Miximo Langer, Rethinking Plea Bargaining: The Practice and Reform of Prosccutorial
Adjudication in American Criminal Procedure, 33 Avi. 1. Crix. L. 223, 24647 (2006)
{deseribing “coercive” and “involuntary” guilty pleas 45 “comnon phenomena) in the
American criminal justice systen”)

3. Plea Basgaining Panel, supra note |

4 See, e Frank H. Easterbrook, Plea Bargaining as Compromise, 101 YALE L.
1969, 196972 (1992);of Ben Grunwald, Distinguishing Plea Discounts and Trial Penalties,
37GA.ST.U. L. Rev. 261 (2021)

5. USS. Const. amend. VI

solidarity, all the defenders got together and said, “We're never going to
plead another client. We're taking all these cases to trial and just jamming
the system.” He then chuckled and said, “I'm not giving you an idea you
haven't already had, I'm sure.”
‘The audience laughed. I sort of blinked. And then Ilooked around to see
if the event was being recorded ¢
The blinking wasn't because I'd never heard the idea before. On the
contrary, whenever I teach criminal law to first-year students, we end the
semester with the final reading on the syllabus: Go to Trial, Crash the Justice
istem.T Published in The New York Times exactly one decade ago, this
essay was written by Michelle Alexander, one of the most famous
contemporary critics of American mass incarceration. But the idea it
sketches wasn't hers. Rather, it came to her as a question posed by someone
else—Susan Burton, a formerly incarcerated organizer, who asked.
What would happen if we organized thousands, even hundreds of
thousands, of people charged with crimes to refuse to play the game, to
refuse o plea out? What i they all insisted on their Sixth Amendment right
totrial? Couldn’t we bring the whole system to a halt just like that?$

On first hearing Burton’s question, Alexander was “speechless™ and
“stunned.™ But as she thought it through, she concluded the answer was yes:
The system of mass incarceration depends almost entirely on_the
cooperation of those it secks 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. ... [T]he system would crash—it could no longer function as it
had before. Mass protest would force a public conversation that, to date,

we have been content to avoid. 10

Burton herself wasn’t sure the idea would work. Alexander warned her
about the harshly punitive things “prosecutors would do to people if they
actually tried to stand up for their rights,”!! including threatening severe
sentences to break the strike. Still, Burton saw a tantalizing power in the
idea.

People should understand that simply exercising their rights would shake
the foundations of our justice system which works only so long as we
accept its terms. As you know, another brutal system of racial and social
control once prevailed in this country, and it never would have ended if
some people weren't willing to isk their lives.12

6. Itwas. See Plea Bargaining Pancl, supra note |

7. Michelle Alexander, Opinion, Go 10 Trial: Crash the Justce System, N.Y. Toues,
M. 12012, ks

1. (quoting Burton).

5 7

10 1

1 i

12 1. (quoting Burton)
T have taught this essay for years and have sat with its core idea for even
longer, stretching back to before my time as a practicing criminal defense
attorney. 13 So it wasn't the substance of the prosecutor’s remarks on that
plea bargaining panel that struck me. It was their casualness. Their ofthand
nature. Followed by his saying, “I'm sure you've thought of this before.”
The assumption seemed to be that he was articulating an open secret—a
shared understanding among all who work in or study the penal system that
the whole thing is just one big house of cards, a plea strike away from
toppling down.

On a certain level, he was right. Many people have surely thought about
the idea before. Itis hard, after all, not to notice a New York Times op-ed by
Michelle Alexander. And indeed, over the years I have seen the idea crop up
among activists and, sometimes, in conversations with fellow academics.
Typically, it is posed in the same far-off way it was floated on that panel.
“Talways wondered what would happenif ... >

Tucked into that wonderment is a set of deep questions. Could this work?
Is it a good idea? Why hasn't it happened? What would it take to succeed?
Seven years removed from Michacl Brown's death on the streets of
Ferguson, these questions hang in the air pregnant with decarceral
possibility—a static charge not yet lightning. But the idea is also unfocused
and understudied. So far as I know, plea bargaining unions have received
almost no attention from legal academics.!* Likewise, they have seen only
sporadic and isolated attempts at implementation, almost always in contexts
far removed from the mine run of criminal prosecutions.'s The idea thus
hangs over our current decarceral moment like a vague adumbration, invoked
only as a general shorthand for the notion that mass incarceration is bloated
and, maybe, beatable—in a “what if . " sort of way.

‘This Essay is an effort to treat Burton’s idea not as metaphor or symbol
butas a concrete proposal. In future work, I hope to examine the theoretical,
legal, ethical, and normative questions that plea unions pose, drawing lessons
from related fields and from case studies of plea-solidarity efforts in the

13. The idea itself goes back a ways. See HENRY T. LUMUS, THE TRIAL JUDGE 4446
(1937) (“The reality, s every experienced prosecutor and jude knows, i thatthe] prosecutor
st g rid of five hundred cases in a time suffiient fo the trial o only one hundred. .. 1f
all the defendants should combine 10 refuse 1o plead guilty, and should dare 0 hold out, they
could break dow the administeation of criminal justice i any state in the Union. ... The
truth i, that a criminal court can operate only by inducing the great mass of actualy guilty
defendints to plead guilty .. "),

14. The most detailed treatments come from Professor Jenny Roberts, who considered the
idea in the context of low-level misdemeanor offenses, and Professor Albert Alschuler, who
offered a broader but briefe treatment a few decades carlier. See Jenny Roberts, Crashing the
Misdemeanor System, 70 Wasti. & LEE L. Rev. 1089 (2014), Albert W. Alschuler, The
Defense Atiorney's Role in Plea Bargaining, 84 YALE LJ. 1179, 124855 (1979). Two
scholars of game theory have offered the most thorough account of the collective action
challenges plea unions would confront. See Oren Bar-Gill & Ormri Ben-Shahar, The Prisoners
(Plea Bargain) Dilemma, 11 LEGAL ANALYSIS 737 (2009) (discussed infra Part I

15. See infra Part 1L Beyond the protester cases discussed latr in this Essay, criminal
defendants “seem almost never (o employ the “general strike.” Alschuler, supra note 14, at
1250,

recent past.16 Here, my goal is to begin laying a conceptual foundation by
elaborating some key contours of Burton’s idea.

‘The Essay has three main parts. First, in Part I I begin by describing some.
of the central structural aspects of the American penal system that make it
vulnerable to defendant collective action. The goal in this part is to expose
with some detail the system’s Achilles heel, and in so doing to render
Burton’s idea both more plausible and more concrete. Next, turning from the
idea’s potential to its pitfalls, Part II centers the largest impediment to
defendant collective action: the literal prisoners” dilemma confronting those
who must decide whether to join a strike. As this part of the Essay explains,
that hurdle is serious, but not insurmountable. Rather, drawing on lessons
from the theory, practice, and history of community organizing, this Essay
centers a practice that could make defendant collective action a reality. And
it demonstrates the proof of that concept by identifying some recent instances
in which plea strikes achieved remarkable success. Finally, connecting back
to the theme of the Colloquium in which this Essay sits, I close by
considering, in Part 111, the role lawyers might play in a plea strike, with a
particular focus on the potential public defenders hold to support such an
effort—or to frustrate it

1. EXPOSING THE HEEL

Plea bargaining lies at the root of American mass incarceration. “By
lowering the price of imposing criminal punishment, plea bargaining gave
America more of it."l7 An idea like Burton’s, which tackles mass
incarceration by attacking plea bargaining, is thus radical by definition.!¥
And like many radical ideas, it is easy to dismiss as a thetorical or symbolic
move—an aspirational gesture rather than a concrete proposal

One goal of this Essay is to render Burton’s idea more concrete by taking
it at face value and asking a straightforward question: could a plea strike
actually work? Tactically, any such strike would surely draw myriad ripostes
from system actors. The goal here is not to offer a complete game-theoretic
account of all the many moves and countermoves that a strike could or would

16. The academic project parallls work on experiential pedagogy and advocacy being
developed in partnership with Premal Dharia, Executive Director of the Insttut to End Mass
Incarceration, See, ... Ein Peterson, “What Can We Do to Help Create 150 Years of Change
in 10 Tears?,” HawV” L BULL., Summer 2021, at 26; Nancy Walecki, “Decarcerating”
America, HaRv. Mag. (Nov._Dec. 2021), hitps:/www hanvardmagazine com2021/1 -
Uecarcerating-america [hiips:/ perma.cc/SDSA-PAMIT]; see also Organizing Projects, INST
70 END MaSS INCARCERATION, hps: fendmassincarceration.org/projects [hps:/perima.cc/
PVA43-PYPA] (las vsited Mar_ 4, 2022).

17 Albert W. Alschuler, Lafier and Frye: Two Small Band-ids for a Festering Wound,
51Dug LRev. 673, 705 (2013).

18 ANGELA Y. Davis, WOMEN, CULTURE & PoLiTics 14 (1984) (reminding that “radical
simply means *grasping things at the 1000™). Of course, there are deeper roots. See generally
.21 DOLGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME (2009); RUTH WILSON GILMORE,
GOLDEN GULAG (2007); REBECCA M. MCLENNAN, THE CRisS OF IMPRISONMENT (2009). But
atthe level of practice-—of the system's implementation nd construction —plea bargaining is
central,

entail. Rather, the goal is to offer a diagnostic overview of the modern penal
system with this particular vulnerability in mind—a probing account of the
system’s weak points that, when viewed together, make a plea strike seem
not just plausible but a genuinely serious threat.

In particular, this part examines four such weak points: the system’s
massive scale, its concentration of harm in discrete communities, its internal
fragmentation, and its formal proceduralism. These four attributes share a
common thread. Typically, they are cited as examples of the ways in which
the American penal system is flawed. failing, or unjust. The suggestion here
is thus not just that plea unions might work. Rather, it s that they might work
precisely because they perform a version of tactical jiujitsu, exploiting
aspects of the penal system’s overextensions and injustices and leveraging
them to pursue decarceral ends. !

A. The System’s Massive Scale

‘The most obvious evil associated with mass incarceration is right there in
its name. The United States incarcerates a massive number of people—more
than any other country in the known history of the world20 It does so by
relying almost entirely on plea bargaining. Research confirms the account
offered by the prosecutor in this Essay’s introduction. Trial rates between
1 percent and 5 percent are common in cities and states across the country.2!
As these data make clear, and as the U.S. Supreme Court confirm:
justice today is for the most part a system of pleas, not a system of trals.

But plea bargaining is not just a defining attribute of the modern penal
system. Itis anecessary one. As a leading historian of the practice observes,
“Prosecutors took up piea bargaining in part to escape the enormous burdens
of their office.”2* Professor Bill Stuntz offers the canonical account. “Like
most of us,” he writes, prosecutors aim “to reduce or limit their workload

19, The goal of this Essay is to examine one tactc that constituencies fighting mass
incarcération might deploy-no 1o presue o pressthat piea srkes should b déployed. On

a5 Raj Jayadey and Pilar Weiss explain. o successfl organizing-driven
ituates the Community 4 the drivers of what the ullmate reaiation of 8 new
Fjustice, haling, and power willlok like R Jayadev & Plar Weiss, Organicing
Towards a New Vision of Community Jusice, LPE PRoicr (May 9, 2019),
s peprojectorg blogorganizing owards-s-new-vision-of-community-ustce!
[/t ceNGTC-GERT]: see aloo Wilam P. Quigly. Reflcions of Commuity
Organizers: Lawering for Emposeerment of Community Organizations., 21 0o N.U. L.
RV, 455 (1994)

20. Enily Widra & Tiana Hereing, Sars of Incarceration: The Glohal Context 2021,
Puson Pou'y INmuTive (Sept. 2021), hipsy/avw prisonpolicy orelobal 2021 buni
[Bps:perm.ceNAZ6- AUXG].

31 See Andrew Manuel Crespo, The Hidden Law o Plea Bargaining, 118 Couon. 1
Rev. 1303, 1375 (L1 (2018) (rporting state-level tial rates betwcen 13 percent and 5.5
percent across seventeen state, Whi ls reporing much reatr variation in dismisal i,
and thus in overallpla ates).

22, Lafler v Cooper, 6 US. 156, 170 (2012) (rporing that“[ninety-seven percent of
fderal convictions and ninety-fourpercent ofsate convitionsar the result o guity ples”).

23, George Fsher, Plea Bargaining s Trumph, 109 YALE L1 557, 893 (2000)

where possible,” which means *
The obvious way to do that “is to convert potential trials into guilty pleas.’
which “are not simply cheaper than trials” but “enormously cheaper. And
prosecutors’ bargaining strategies tend to ensure that this remains 50.”25

Here, though, is the critical point. Even wirh the enormous resource
savings prosecutors gain from plea bargaining, they and their local court
systems are still maxed out. In many jurisdictions, “individual prosecutors
handle more than one thousand felony cases per year.”2 This translates into
“hundreds of open felony cases at a time” and “multiple . .. cases set for trial
on any given day.™>7 Of course, no single person can litigate multiple trials
at once. Soaring caseloads also mean prosecutors cannot “thoroughly
investigate cases, subpoena witnesses, meet with experts.” or complete other
essential tasks.2% The system as it currently stands thus denies prosecutors
“the time and resources necessary to win at trial "2 Plea bargaining is the
only way they can make ends meet, and the resource gap it bridges is huge

Taking these points together, a central insight emerges. Resource
constraints—not law, not oversight, but resource constraints—are the major
anti-carceral force capable of checking the modern American penal system.
This is of course the central point animating Burton’s plea strike idea. But it
bears noting that the observation is hardly limited to_abolitionist
imaginations. Consider the following passage, written in 2011 by then
Professor Stephanos Bibas, prior to his appointment to the U.S. Court of
Appeals for the Third Circuit by President Donald Trump:

In a world of overeriminalization, limited budgets are not all bad. The
silver lining is that prosecutors cannot possibly pursue all of the new crimes
that their legislative allies have created. Resource constraints and scarcity
can foree prosccutors to rank prioritis, mitigating in practice the problem
of overcriminalization on the books. Limited funds thus are not a bug but
a design feature: they check prosecutors from prosccuting the entire
universe of people who are technically guilty of something but do not
especially deserve conviction and full punishment 30

Six years later, Bibas took the point a step further. Writing with Professor
Richard Bierschbach, he urged reformers to go out and create “beneficial
scarcity” by taxing System resources in ways that might “force police,
prosecttors, judges, and other actors to do triage, focusing their efforts on the
most socially beneficial interventions.”*! Driving the point home, he urged

miting the cost of the process per case.”

24. William . Stuntz, The Pathological Politics of Criminal Law, 100 Mici. L REv. 505,
535 (2001).

25 4d 53637,

26. Adam M. Gershowitz & Laura R. Killinger, The Stae (Never) Rests: How Excessive
Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. UL Rev. 261,262-63 2011).

27" 263 (emphasis added).

28 1d 265

2 1d

30, Stephanos Bibas, Sacrificing Quaniity for Qualiy: Better Focusing Prosecuors”
Scarce Resources, 106 Nv. U. L. Rev. CoLLoquy 138, 139 (2011).

31, Richard A, Bierschbach & Stephanos Bibas, Rationing Criminal Justice, 116 Mici
LRev. 187,103 (2017).
states 1o place “a cap on the number of people who could be sentenced to
prison each year,” an approach that would “encourage prosecutors to use
prison sparingly in favor of other, less costly sanctions.”*2

Plea strikes carry this idea to its conclusion. If resource constraints can
forestall incarceration by leveraging beneficial scarcity, then massive
resource constraints can forestall mass incarceration: “Go to tral, crash the
system.™3 Indeed, plea strikes differ from Bibas and Bierschbach’s cap
proposal mainly in the way they go about “drawing out, hamessing, and
creating scarcity. " Rather than trust system actors to self-impose caps
through legislation or internal policies, organizers like Burton would impose
those caps from the outside, by leveraging the collective power of criminal
defendants to make the costs of conviction skyrocket. Placed into such a
vice, the reasonable prediction is that the prosecutor will recognize that she
has a time-honored and familiar “mechanism to ease her own pain.”5 She
can start dismissing cases and declining to pursue new ones. 3

Here's the kicker. Given the massive scale of the penal system’s
overextension, even a weakly supported strike could be highly successful.
Recall the numbers. In most jurisdictions, the trial rate hovers between |
percent and 5 percent of all cases. And at that low rate, the system i
operating at full capacity. Crunching these numbers, a unionization
campaign that successfully persuaded just 5 percent of the remaining
defendants 1o insist on trials would double the resource demands on an
overburdened system 7

Five percent. And the system comes to a halt

B. The System’s Concentrated Harms

‘The American penal system is defined not just by its massive scale, but
also by the massively disproportionate harmss it inflicts along racial and
socioeconomic lines. As Professor Loic Wacquant explains,
the stupendous expansion and intensification of the activities of the
American police, criminal courts, and prison over the past thirty years have

32 d_a1 229 (citing Cheryl Lero Jonson et al, The Small Prison, in THE AMERICAN
PRISON: IMAGINING A DIFFERENT FUTURE 215, 22628 (Francis T. Cullen et al. s, 2014)).

33, Alexander, supra note 7.

34 Bierschbach & Bibas, supra note 31, at 233. To be cear, Judge Bibas would get off
the tain wel before s terminus. See Bibas, supra note 30, at 140 (‘[Plrosecutors cannot
simply stop prosecuting al misdemeanors; these charges help (o keep our neighborhoods safe,
orderly, and clea

35. Josh Bowers, Physician. Heal Thyself: Discretion and the Problem of Excessive
Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killnger, 106 Ny U.
L-Rv. CoLtoquy 143, 145 (2011)

36, Cf Bar-Gill & Ben-Shalar, supra note 14, at 739 (“[T]he plea bargain replaces a
no-prosecution opion. Dué o the prosecutors” resource constrint,these defendants would
ot have been prosecuted atall. A plea bargain, it tums out is notan improvement fr them.”).

37. Professors Angela J. Davis and Vida Johnson echo the point, noting that “oven a small
increase in the percentage of ases that are taken to tril” could “ereate chaos.” See Vida B.
Johnson, Effective Assistance of Counsel and Guilly Pleas—Seven Rules 1o Follow,
Cutanrion, Nov. 2013, a1 24, 26; Alexander, supra note 7 (quoting Davis).

been finely targeted, first by class, second by race, and third by place,
leading not to mass incarceration but to the Ayperincarceration of
(sub)proletarian African American men from the imploding ghetto. 3§

Taken together, Wacquant says, these triple filters of race, class, and place
“point the penal dagger” at precise communities within our polity 9 Indeed,
the dagger typically cuts deepest in specific neighborhoods within cities,
sometimes even targeting particular city blocks. Eddie Ellis, himself
incarcerated for twenty-three years, reported in 1992 the striking statistic that
75 percent of New York State’s entire prison population came “from just
seven neighborhoods in New York City.™# More recently, the Million
Dollar Blocks project maps in vivid detail how specific blocks within cities
drive mass incarceration ¢!

‘Wacquant surfaces this hyperincarceration to condemn it. And rightly so.
But here, too, there is a flip side to the system’s injustice. “The extreme
demographic _concentration of punishment suggests where the most
important effects can be felt,” and thus clearly demarcates the very
communities that Burton’s plea bargaining unions would need to organize 42

From the perspective of a nascent organizing campaign, this geographic
concentration holds potential advantages. For one, hyperincarceration
clearly defines the constituency at the heart of the organizing effort. As
organizing scholar and teacher Marshall Ganz instructs, the first question in
organizing is “Who are my people?™# When it comes to a plea strike,
hyperincarceration makes the answer to that question clear, focusing
organizers’ attention on the neighborhoods at the point of the knife
Moreover, from the perspective of those communities, the concentrated
harms of mass incarceration—ranging from over-policing, to poor public
safety, to family destabilization, to wealth extraction and economic
stagnation, to_degradation of public health—create a focused set of
“actionable *grievances' that are “experienced as an injustice.”* As Ganz

38, Laic Wacquant, Class, Race & Hyperincarceration in Revanchist America, DEDALUS,
Summer 2010, at 74, 74

39 4 a7,

40, Francis X. Clines, v

sates Urge Return 1o Areas of Crime 1o Help, N.X. Tiues,
Dec. 23, 1992, at AL Elli’s findings were later confirmed by other scholars. Sec Jerey
Fagan etal, Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods,
30 Foroiiab Usa. L1, 1551, 1568 (2003).

41 See Million Dollar Blocks, Cows. UNv. Cr ror Sl Rsci,
hitps/fcdsr.columbia.eduprojectsanillion-dollar-blocks [hitps:/perma.ce/DSTZ-STLK] (lasi
visted Mar. 4, 2022)._For an overview of the literture, see JESSICA T. SIMES, PUNISHING
PLACES: Ti GEOGRAPIY OF MASS IMPRISONMENT i-3 (2021). As Simes emphasizes, the
highest imprisonment rates are now in small cities, suburbs, and rural areas. d. at 4

42, Suwes, supra note 41, at |

43, Marshall Ganz, Organizing: People, Power, Change 2 (2018) (unpublished notes) (on
il with author) see Kite Andrias & Benjamin | Sachs, Constructing Countervailing Power:
Law and Organizing in an Era of Political Inequality, 130 YALE LJ. 546, 557 (2021)
(“{OJrganizing tends 1o be most successfol among people with shared identities and exsting
elationships.).

44, Marshall Ganz, Leading Change: Leadership, Organization, and Social Movements,
in HANDBOOK OF LEADERSHIF THEORY AND PRACTICE: A HARVARD BUSINESS Sctiool
CentenniAL CoLLOQUIUM 509, 515 (Nitin Nohria & Raksh Khurana eds., 2010); ¢f SIMes,

further explains, this shared experience of injustice, when combined with the
hope that it can be overcome, is an essential component of what organizers
call the “story of us,” a narrative account of shared values and purpose that
help “a_community to become a constituency—people able to ‘stand
together’ on behalf of common concerns.™S

More pragmatically, the fact that hyperincarceration targets concentrated
communities makes the workaday tasks of organizing easier. Organizing is
physical work. It takes place in physical space. To succeed, organizers “train
participants in some form of one-on-one meetings as well as ‘house
meetings,” a way to grow a movement utilizing preexisting relational
networks™6 Even national campaigns structure themselves in nested
geographic units, down to the ward or precinct levels, to focus their resources
effectively and to leverage the social capital latent within existing locales.
Hyperincarceration makes this work easier, insofar as a plea union might
need to organize only a handful of such precincts to succeed.

Finally, beyond space, there is the matter of time. As Ganz emphasizes,
organizers do not just motivate collective action; they help develop strategies
to deploy collective resources effectively—resources like “not guilty” pleas.
Successful strategies anticipate “the actions and reactions of other actors,”
such s the prosecutors who will inevitably try to break the strike. 7 We will
examine the tactics prosecutors are most likely to deploy in that effort in a
moment. For now, it bears emphasizing that the geographic concentration of
mass incarceration offers one of the most important strategic buffers against
those strike-breaking ploys: organizers can do the long hard work of building
solidarity before the moment of crisis and choice is at hand—that is to say,
before people are arrested, charged, and asked to plead guilty.

The strike, in other words, does not need to be organized inside the jail,
when people are at their weakest and most vulnerable and when barriets to
coordination are highest. Its foundations can be built instead in the
community, while they are free—because we know in advance who is going
to be arrested. That is hyperincarceration’s injustice and its opportunity.#

C. The System’s Fragmentation

Researchers and reformers alike bemoan the American penal system’s
fragmentation. For researchers, fragmentation makes it hard to know how
the system works. For reformers, fragmentation makes it hard to combat

supra note 41, at 151 (noing that an emerging “science of punishment vulnerabiliy” views
“intense formal social control as a hazard akin 1o industeal waste, toxins, loods, and natural
disaster”).
35, Ganz,supra
46, Ganz_supra
47 4d 52930,
48, As Ganz explains, organizers can help prepare people for collective action by
“warning [them) that the opposition willtheaten them with this and woo the with that. The
fact tha these behaviors are expected reveals the opposition as more predictable and thus less
o be feared” L. at 1.

ote 44, a1 $22-23, 525; sec also Ganz, supra ot 43,212
ote 44, a1 515,

systemic injustices, which need to be tackled in a thousand different ways at
once.

But here again there are opportunities that defendant collective action
could exploit.Consider first the system’s geographic fragmentation 49
Generally speaking, prosecutor offices are both constituted and funded at the
county level, with most prosecutions conducted by independently elected
agencies that are legally and institutionally siloed from offices in neighboring
counties 50 As a resul, if a given prosecutor’s office becomes overwhelmed
(by a plea strike), there is no readily available pool of backup attorneys who
can easily slide in to relieve the pressure, even assuming leaders of
neighboring offices are inclined to help.5! At the same time, trial courts are
structured geographically as well, which means prosecutors cannot easily
relieve the pressure by moving striking defendants to other, less burdened
courthouses.52

Within those trial courts, moreover, a second form of fragmentation
occurs. For administrative reasons, many state trial courts assign judges to
specific dockets, such that a given judge will only hear probate cases, or
housing cases, and so forth. Sometimes these assignments are set by
administrative rules and are transient; other times, the divisions are statutory,
with judges specifically appointed to a certain type of court.5* Notably, these
subdivisions often occur wirhin the criminal system, such that misdemeanor
cases are institutionally segregated from mid-level felony cases, which are in

49. See, e, Bierschbach & Bibas, supra note 31, at 195 (“[EJven calling it a criminal
justic system s s misnomer: it a ragmented congeriés of fifly sttes, thousands ofcountes,
Several thousand prosecutors” offices employing tens of thousands of prosecutors, and more
than twelve thousand police departments employing hundreds of thousands of offcers.”).

50. See i at 190.

51 Stat attorneys general operate statewide but are typically not staffed of structured to
absorb the volume of cases handled by distictattomeys i large cities, and in some states do
not have general jurisdiction (o prosecut such offenses. See. ¢ Erik Larson & Bob Van
Voris, Quirky N.1. Law Prevented AG James from Charging Cuomo, BLOOWSERG (Aug. 4,
2021, 1:20° M), itps:/www bloomberg com/news/articies/2021.08-04/quirky-1-y-law-
prevented-attorey-general-from-charging-cuoma [htips:/perma.ccDOZU-LIP9] (Under
New York's executve law, the attorey general can't open criminal investigations or bring
charges without a green light from the governor or one of his department heads.™). The
opposite s rue at the federal level, which has a single, national Department of Justice. The
ifference matters: i the aftemat of one recent Supreme Cout rling that flooded cours in
ko, “[fJederal prosecutors and support staff from every comer of the country [came o
elp local] U'S. Attorneys” offices . overwhelmed with case work” Amy Slanchik, Federal
Prosecutors Move to Oklahoma 10 Help with Supreme Court Caseload, News ox 6 (Jan. 14,
2021, 10:05 PM), htps:/wwwi.newsoné comstory/6001 14a2dbdb4a0beSbdabss Tederal.
prosecutors-move-to-oklahoma-to-help-with-supreme-courl-caseload
[tps:iperma.cc FSSW-CWX2). Federal plea strkes would thus be much harder to execute,
and locally oriented strikes must straegize in the shadow of the potential federalzation of
ocal charges.

52 See WAYNE LAFAVE ET AL, CRIMINAL PROCEDURS: § 16 (6ih ed. 2017) (iscussing.
Venue rules).

3. See id §§ 16, 16.1(a); see also 51 T COUNCIL OF STATE Gov'Ts, BOoK OF THe
STATES 202 LS.7 (2019).

tum segregated from more serious felonies. The “penal pyramid.” in other
words, is striated 5¢

And as a result, plea-strike organizers could choose where 1o start the
strike, in a manner that maximizes their strategic advantage. 55 Perhaps they
would start with low-level misdemeanor cases, which are both the largest in
number and the most likely to garner public sympathy. ¢ Perhaps they would
target specific offenses.57 Or perhaps they would start with defendants who
are most insulated from coercive prosecutorial tactics.™ The point here is
10t t0 try to answer this contingent strategic question in the abstract. Rather,
itis simply to say that the answer to the question would be made by the strike
organizers themselves, and to note that this fact alone is a strategic advantage
that the system’s internal fragmentation affords.

D. The System’s (Conservative) Procedural Formalism

As Professors Lani Guinier and Gerald Torres teach, organizing
campaigns are a form of “contentious politics.” They aim to win victory
for their constituencies by engaging in_participatory democracy, and
ultimately, by marshalling public will to their side. A plea strike operates in
this register. As Alexander observes in her New York Times op-ed, the strike
aims to “force a public conversation”™0 about whether plea bargaining and

54 See Alexandra Natapoll, The Penal Pyramid, in TE New CRIMINAL JUSTICE
TwinkinG 71,71 (Sharon Dolovich & Alexandsa Natapof eds, 2017).

55 For one historical example of a localized plea strike, see Alschuler, supra note 14, t
1236-37 (describing 4 srike within a single “bastard courtoom[]"). Alschuler reports that
“ihe rials ti[d] up the courtroom and causefd] other cases to be reass
that only a smaall number of defendants come before the insuficiently lenient judge.
1237

6. See Raberts, supra note 14, at 1090-91, 1109, 1129 (observing that “misdemeanors
comprised 77.5% of the totalcriminal caselond in [some] courts” and arguing that they “may
be less controversial as a focus of a coordinated defender community and defendant effort
than other types of offenses, because they are usully vietimless” and “tend to have lowe
directcriminal sanctions”); LUMMUS, supra note 13,50 (*[The prosecutor]dislikes o spend
precious ime i trying small cass, and an appellant in a petty case who stubbornly refuses (o
plead guilty stands a good chance of being offered asmall penalty or being let o with nane.”).

S7.Cf Alschuler, supra note 14, at 1251 ([The public defender office in [Los
Angeles] .. had onc refused to enter guily pleas for defendants harged with prosttuton.
A number of private defense attomeys foined the stike, and for a two-week period, most
prostitution cases went Lo trial. Uliimately, the courts ‘came around” and revised theie
Sentencing palicies.”).

8. Peaple facing extremely high sentences may be most open to going to trial because
the prosecutor’s leverage is weaker. C/. Luuren M. Ousiel, Legitimacy and Federal Criminal
Enforcement Power, 123 YALE L. 2236, 2255 (2014) (observing that “[hjomicide offenses
have one of the ower guilty plea raes” while lso carrying “the highest stautory and [Federal
Sentencing] Guidelines penalies™). These trals can also be the most resource iniensive. C.
Bar-Gill & Ben-Shahar, supra note 14, at 757 (noting that “some defendants are costlier 10
). On the othe hand, these trials are smalle in number and the courtooms into which
they are siloed may thus have comparatively higher capacity.

59, Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence
of Law & Social Movemenss, 123 YALE LJ. 2740, 2744-50 (2014).

60, ‘Alexander, supra noie 1.

mass incarceration are consistent with what Guinier and Torres would call
“the larger culture’s narratives of justice.s!

Plea strikes hold an advantage in this contest that other decarceral moves
donot. They seek no more and no less than the fulfilment of a right expressly
guaranteed in the U.S. Constitution. The strike, in other words, can be seen
as an act of constitutional fidelity. In this way it is meaningfully different
from decarceral strategies grounded in acts of civil disobedience.52 The
strategy here is instead a form of uncivil obedience, a type of “subversive
law-following” that shows “extraordinary attentiveness to the rules on the
books.™* Indeed, it is “subversive at least in part because of its very
attentiveness 10 law."64

‘When it comes to contentious politics, this feature of the strike allows plea
unions to invoke narratives of justice with crosscutting ideological appeal
Consider first how the strike might appeal to political conservatives, and thus
blunt some of the backlash that decarceral efforts often invite. Drawing on
social psychology literature, Professors Jessica Bulman-Pozen and David
Pozen explain the point:

61. Guinier & Torres, supra note 59, at 2744 16 (citing SIDNEY TARKOW, POWER IN
MOVEMENT: SoctaL MOVEMENTS AND CONTENTIOUS POLITICS 19 (2d ed. 1995). Given the
resource-focused nature of th stike, this contest would surely play out in budgetary batiles
to0, which have their own narratives of justice. One response 10 4 strke could be mass
decarceration. Cf. L. Song Richardson, Systemic Triage: Implicit Racial Bias in the Criminal
Courtroom, 126 YALE LJ. §62, §89-90 (2017) (reviewing NicOLE GONZALEZ VAN CLEVE,
CROOK COUNTY: RACISH AND INIUSTICE N AMERICA'S LARGEST CRIMINAL COURT (2016))
(‘I giving defendants the process they are due leads the system to grind 0.3 hal, then perhaps
this will put pressure on criminal justice system decision makers 1o rethink the policing.
practices and criminal justice policies that create the conditions of systemic tiage in the first
place.”). The obvious altemative is that opponents of the strke willinsist that new resource
constraints require more resources. See Bar-Gill & Ben-Shahar, supra note 14, at 741 (‘I is
plausible [that in the wake of the sirike] .. prosecutorial budgets would increase, (0 the
detriment of defendants™). Note, however, thalthe influx of resources needed (0 quash even
a small strike would be enormous, as under current (no strike) conditions “modest budget
increases would have ltle impact on the enormous overburdening” prosccutors already face.
Gershowitz & Killinge, supra note 26, 1 265. The resoutces needed to overcome a trial rate
o, three, o ten times higher than current baselines would thus be massive, and the poliical
Wil to raise such funds may not be present. See William 1. Stuntz, Plea Bargaining and
Criminal Law’s Disappearing Shadow, 117 HARY. L. Rev. 2548, 2555 (2004) (“Even if the
money is there, local governments are loath 1o tx it 0 support law enforcement ") Bibs,
supra note 30, a1 139 (‘[AJn extra dollar spent on criminal justice is a dollar less for other
programs. Al some point, criminal justice’s bottomless appetite must give way to other
needs™). And poliical will can itsel be influenced by organizing. C Marina Roberts, Saving.
Austn, INQUEST (Nov. 24, 2021, htps:/nquest org/saving-austi’ [htps://perma cc/5QUY-
vz

62 Cf Paul Butler, Racially Based Jury Nullfication: Black Power in the Criminal
Justice System, 105 YALE L1 677, 67980 (1995)

63, Jessca Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 CoLua. L. Rev.
809, 811 818 (2015)

64. 41,1 $35. I a related but distinct way,

lea srikes are emblematic of what Professor
Jocelyn Simonson calls agonism, “a politics that respects conflct and adversarialism, but
Seeks to channel it through democratic chanels.” Jocelyn Simonson, Democratizing Criminal
Justice Through Contestation and Resistance, 111 Nw. U. L. REX. 1609, 1614 (2017)

[Plolitical conservatives value deference to established authority, as such,
more than political liberals do. Whereas psychological foundations of
fairness and care are paramount for self-identified liberals, ... “intuitions.
about authority and the importance of respect and obedience” critically
inform the moral systems of sclf-identified conservatives.

Uncivil obedience .. . cloaks dissent in behavior that is, at least
superficially, respectful of established authority. Like the civil
disobedient, the uncivilly obedient] s out to change the system, but she
does so by mastering the system’s rules. She does so from the inside. That
alone may render uncivil obedience a more comfortable practice for
conservatives ... .65

And indeed, supporters of plea strikes exist on the political left and right 66

Atthe same time, the fact that plea strikes speak the language of rights can
motivate people to join them. As social-movement theorists observe, “law
has the capacity to serve as a powerful collective-action frame,” with civil
ights laws in particular often operating as a “master frame” that resonates
“deeply across social movements and protest cycles."o7 Professor Jennifer
Gordon puts the point this way, describing the role of legal rights in labor
organizing: “The idea that employers were supposed to be acting
differently—that in paying so little and demanding so much they were
ignoring a set of established norms, codified as rights—suggested a less
individualized, more systemic explanation of the problems,” which in turn
highlighted for those sceking to combat those problems the “need to respond
inkind."¥ The same can be said of prosecutors and the penal system. People
are supposed to “enjoy the right to a speedy and public trial, by an impartial
jury.™ The fact that almost no one actually does enjoy that right suggests a
deep systemic problem in need of a systemic response.

But importantly, the plea strike’s constitutional fidelity is more than just a
thetorical device or a narrative frame. The legal rights it leverages are real
ights and are immensely valuable resources. 0 As Stuntz once observed, it
is the constitutional law of criminal procedure that makes trials so expensive

65. Bulman-Pozen & Pozen, supra note 63, at $69-70 (quoting JONATHAN HAWT, T
RUGHTEOUS MIND: Wir¥ GooD PEOPLE ARE DIVIDED BY POLITICS AND RELIGION 168 (2013))
6. See, e.g. Alexander, supra note 7 (quoting Timothy Lynch of the Cato Institite);
Clask Neily (@ConLawWarrior), TWirTER (Nov. 7, 2020, 8:06 AM), htps:/witer.com
conlawwarrior status/1 325061962565185536 [heps:perma cc/X4ZA-MCBU].

67, Andrias & Sachs, supra note 43, at 592 (quoting Nicholas Pedriana, From Protective
to Equal Treatment: Legal Framing Processes and_Transformation of the Women’s
Movement in the 19605, 111 Axt . Soc. 1718, 1725 (2006)): sce also TAVLOR BRANCH,
PARTING THE WATERS: AMERICA N TH KING YEARS 195463 (198S).

68, JENNIFER GORDON. SUBLRBAN SWEATSHOPS 171-72 (2008); see also Andrias &
Sachs. supra note 43, at 594 (noting that codified set of rights “signifies egal legitmation

4 this legal support forthe - - effort 1o organize™ around those rights).
9. US. Const. amend. VI

70 G Andrias & Sachs, supra note 43, at 595 (“While ___accounts of mobilization and
organization sress symbolic factors,the literature suggests that resources of various kinds are
equally important™); Ganz, supra hote 44, at 510 (noting that organizing “Torges social
movement. community and mobilizes s resources, 4 primary source of social movement
pover’).

for prosecutors in the first place. Plea bargaining exists to try to neutralize
those rights, by getting the defendant to waive them.” But if defendants
refuse to waive their rights en masse, all those deferred costs come crashing
due

As practicing lawyers know well, the costs can be substantial. Consider
just some of the rights that striking defendants can invoke to make each trial
in the deluge a costly endeavor. Most importantly, the right to a trial itself—
in many cases by jury—is hardwired into the Constitution, which means the
“not guilty” plea can’t just be eliminated by the state, even if its collective
use threatens system overload. 7 Juries, meanwhile, can take significant time
and energy to summon and select. Before they arrive, defendants have the
right to receive and review any favorable information about their case held
by the prosecution, which triggers not only labor-intensive file review and
disclosure obligations but also time-consuming litigation if those obligations
are not met” Defendants also have the pretrial right to challenge the
admission of any evidence they say the police unlawfully acquired, which
usually entails an evidentiary hearing with one or more witnesses and can
also entail written briefing on various issues.™ Once trial starts, defendants
have the right to force the prosecutor to summon every witness needed to
prove every element of every charge.” This includes eyewitnesses (whom
the prosecutor must track down and prepare to testify) and more mundane
witnesses, such as the lab technician summoned simply to testify that “these
really are drugs.” Finally, defendants have the right o cross-examine each
of those many witnesses (often at length), to summon and question their own
witnesses, and to present closing arguments on their own behalf.

To effectuate each of these rights, the defendant is guaranteed a lawyer—
at the state’s expense.” That lawyer will surely know (or can learn) how to
press the defendant’s rights in order to impact the pace of litigation, in a
manner consistent with the strike’s overarching strategy. Of course, defense
lawyers themselves could get overwhelmed by the strike. But notably, the
Constitution is asymmetrical in its protections. Defendants have a right to
the effective assistance of counsel. So if the defense bar cracks alongside the
prosecution, the striking defendants could seck dismissal of their charges on
the ground that the government lacks the resources to fulfil ts obligations to

71 See William 1. Stuntz, The Uneasy Relationship Between Criminal Procedure and
Criminal Justice, 107 YALE LJ. 1, 4 (1997) (“[Clourts have raised the cost of criminal
investigation and prosecution .. [Gluiliy pleas avoid most of the potentialy costly

equirements that criminal procedure imposes.”)

72, See US. ConsT. amend. VI

73 See Brady v. Maryland, 373 U 83,87 (1963).

4. See Mapp v. Ohio, 367 U.S. 643, 655 (1961)

75 See In re Winship, 397 U S. 358, 364 (1970); Holland v. United States, 148 US. 121,
126(1953).

76, See Melendez-Diaz v. Massachusetss, 557 US. 305 (2009).

7. See Herring v. New York, 422 US. §53, 858 61 (1975); Davis v. Alaska, 415 US.
308 (1974); Washingion v Texas, 385 US. 14, 23 (1967).

T8, See Gideon v. Wainwright, 372 U S. 335, 34246 (1963).

provide them with an adequate public defense.” On the other hand, if the
Tocal defense bar becomes co-opted or pressured into a position hostile to the
strike, the defendants enjoy the right to select independent pro bono counsel
of their own choosing if collaborating nonprofits are available, or even to
represent themselves.50

Finally, the Constitution limits the prosecution’s ability to work its way
outof the vice. A combination of venue rights and speedy trial rights makes
it difficult to spread the striking defendants out across less burdened
jurisdictions or across time.81 Likewise, if the prosccution attempts to cut
comers (say, by withholding favorable evidence or making improper
arguments 1o the jury), due process protections can lead o a mistrial or a
dismissal of charges. Most importantly, a core cluster of rights blocks the
prosecution from securing a conviction unless a jury drawn from the local
community unanimously agrees that the prosecutor proved every element of
the charges at a public trial with proof beyond a reasonable doubt. Taken
together, these essential rights ensure that the local community—which could
itself be organized to support the strike—has an opportunity not only to
monitor the prosecution’s actions but also to directly negate its most effective
strike-breaking device: the threat of prison.2

Make no mistake. The point in describing these rights is not to suggest
that they will forever stand as impenetrable bulwarks of protection. Nor is it
to suggest that in their current form they are robust enough to guarantee a
strike's success. Far from it. Even with these rights in place, a plea strike
would be a major undertaking with substantial hurdles to overcome 53 And
judicial precedents can be narrowed or overturned.

Here, though, is the key point. Each of the rights discussed above is, at
present, firmly established in long-standing and unquestioned constitutional
law. Most are grounded in the Constitution’s express text and history and
reaffirmed in opinions written by leading conservative jurists. In other
words, the strike’s constitutional bona fides are strong. ~ Call it a “Sixth
Amendment Strike” and it might be the one union action the late Justice
Antonin Scalia could love.

‘Will a strike put pressure on these rights? Absolutely. Might some of
them buckle or erode in time? Maybe, if appellate courts eventually take that

79, See, e, Kuren . Luzeme Caty, 146 A3 715, 743 (Pa. 2016).

80 See Caplin & Drysdale, Chartered . United States, 491 UsS. 617 (1989) Faretta .
California, 422 U.S. 806 (1975); f Bar-Gill & Ben-Shaar, supra ot 14, a1 763 (observing
that i public defenders are “t00 successIul”in supporting "efTective plea bargain strikes[] the
state can replace this system with a different one”

81 See LAFAVE ET AL, supra note 52, §§ 16, 18 (iscussing venue and speedy tral).

52, As Professor Niko Bowie observes, successful unions n the past have “dramatically
incteased thelir] leverage™ by building essentialalliances with a broader coaliton comprising
“organized church leaders, college students, and urban residents,” and thus buiding an
“experimental “cross between being 4 movement and being a union." Nikolas Bowie,
Anidemocracy, 135 HARY. L. REV. 160, 186 (2021) (quoting Misiaw PAWEL, THE CRUSADES
OF CESAR CHAVEZ 116 (2014))

3. See infra Part 11

step:% But this much is clear: the existing legal structure would not collapse
in a day, or a week, or a month—and in no world would the entire edifice
simply topple all at once. A strike can thus, at minimum, leverage these
valuable resources at the outset of its campaign, when they are arguably most
important. And it can defend them as the effort marches on, supported by
lawyers fighting each step of the way.

IL. PRISONERS’ DILEMMAS

‘The foregoing part outlines resources and structural advantages that could
be leveraged by striking defendants and thus offers some reasons to be
optimistic about a strike’s success. But there is, of course, another side to
the analysis. The prosecutors have resources, too. And they are substantial.
The purpose of this part is to focus on the most significant tool prosecutors
have at their disposal, what Professors Oren Bar-Gill and Omri Ben-Shahar
call the “divide and conquer” strategy. 55
‘The basic idea is straightforward. Massachusetts Supreme Court Justice

Henry Lummus put it this way in 1937: “The prosecutor is like a man armed
with a revolver who is comered by a mob. A concerted rush would
overwhelm him, but cach individual in the mob fears that he might be one of
those shot during the rush.”*6 Bar-Gill and Ben-Shahar build on the analogy
to pinpoint the problem. It is not just that each person fears being shot.
Rather, it

that it i in the interest of any single [one of them] to duck, to defct from

the front line, and to lt others mount the charge. A smart apponent would

cultivate this temptation of his cnemies to defect one by one, by threatening

to strike the fist one who charges. 1t might be enough for this opponent to

have a single bullet to prevent the uniform charge and to force the entire

[zroup] . . to surrender 87

Put more simply, “Defendants are trapped in a collective action problem, and
this collective action problem allows the prosceutor to leverage a limited
budget into many harsh plea bargains. "%

Crucially, for Bar-Gill and Ben-Shahar, trapped really means trapped. The
nature of the problem, they say, is such that defendants cannot coordinate

4. Note, though, that unlike teial courts direcly fucing the strike, appellate courts will
ot dirctly el the resource crash. And they will know they are craflng rules that apply well
beyond the striking juisdiction.

85. Bar-Gill & Ben-Shahar, supra note 14, 767,

86 LUMMUS, supra note 13, at 46

7. Bar-Gill & BenShabar, supra note 14, at 740; see also id. a1 75254 (modeling the
‘unraveling” of the stsike: “The proscculor’s threat (o take Dy 1o tral s credible, and,
therefore, D accepts. Now that Di is out ofthe picture, having accepted the prosecutor's plea
offer, the prosecutor’s threat (0 take D2 o tial becomes credible, nd, therefore, D accepts.
And S0 n.")

8. 4, 740,

and cannot join forces and unite against the prosecutor”®? Plea strikes, in
other words, are “doomed to fail. ™0

‘There is much truth to Bar-Gill and Ben-Shahar’s analysis. The divide and
conquer strategy is real. Indeed, itis the chief hurdle plea bargaining strikes
would need to overcome. The central question is thus whether the problem
i truly insurmountable, as Bar-Gill and Ben-Shahar suggest

‘This Essay will not convince every skeptic that plea strikes can succeed.
Truth be told, I doubt any academic essay could do that. People will believe
that the hurdles confronting defendant collective action can be overcome
when they see them overcome, which will take more than words on a page.
Still, words can help, in part by giving people a basis for believing that
strategic action aimed at building and deploying defendant solidarity is not
inevitably bound to fail. That is what I aim to offer here: some grounds to
believe that Bar-Gill and Ben-Shahar are less right than they suggest.

Specifically, there are two reasons to believe that they overstate the
impossibility of defendant collective action, one theoretical and one
historical. Consider first the conceptual point. Bar-Gill and Ben-Shahar
present an illuminating conceptual model that forecasts how prosecutors will
attempt to defeat defendant collective action. But their theory's major
oversight is that it fails to consider where such collective action comes from
in the first place. Indeed, while the model games out potential moves by
prosecutors, defense lawyers, and (briefly) defendants, it omits organizers
from the picture altogether 9!

This is no small oversight. As a theory and a practice, community
organizing aims to build group solidarity in the face of the very collective
action challenges that Bar-Gill and Ben-Shahar identify. Professors Kate
Andrias and Ben Sachs capture the point well:

A chief obsiacle for many individuls is fear of reprisal. As
sociologists have demonstrated, fear of retaliation can jeopardize collective
action, particularly i high-risk environments. Among_low-income
populations, the risk is high. For workers, tenants, debtors, and benefit
recipients, retalation might mean the loss of livelihoods, shelter, future
ereditworthiness, and emergency support.

[But] [rJetaliation and repression do not always defeat organization.
Movement identity, solidarity, and social bonds can help individuals resist

89, 141759 (emphasis added).

90, 1d a1 763

91 See, e, id. at 75458 (modeling prosecutor behavior); id at 760-65 (modeling
defense’attorney behavior). Bar-Gill and Ben-Shahar do explore ways that o “public
defender’s office could help overcome some of the impediments to coordination,” though they
ultimately conclude that the lawyers” ethical obligations will be & major impediment o theie
playing such a ole: “The public defender's office can solve the collectve action problern that
plagues s clents only if cach public defender forgoes her duty of loyalty to the individual
client” [d 21760 61 As T explain in Past 11 of this Essay, I think Bar-Gill and Ben-Shabae
areright o ths score. Public defenders (and riminal defense wyers more generally) cannot
be the drving force of a plea stike, and indeed any effort on their part o do 50 would be
ethically and normatively troubling. A successful srike thus requires organizers. not public
defenders playing the partof organizers and lawyers at the same tim.

and challenge authority. Rick Fantasia, for example, illuminates how
organizing and strikes foster a culture of Solidarity that makes it possible
for workers to persist, even in the face of antiunion campaigning,
intimidation, and arrests. Jeff Goodwin and Steven Pfaff show that intimate
social networks, mass meetings, collective identites, shaming, and appeals
to divine protection all helped mitigate fears of police repression and
encouraged movement _participation during both the Civil Rights
movement and the East German Opposition movement %2

In part, organizing does this by moving beyond the cool game theory
rationality that Bar-Gill and Ben-Shahar deploy. Organizing does not
disregard the important strategic questions such analysis surfaces. But, as
Marshall Ganz explains, it pays equal attention to the affective dimension of
human decision-making:

When we consider responding to a challenge with purposeful action, we
ask ourselves two questions: why and how. Analytics helps answer the
“how question”—how to use resources efficiently, detect opportunities,
compare costs, and 5o on. But to answer the “why question™—why this
matters, why we care, why we value one goal over another—we tum o
narrative. The why question is not why we think we ought o act, but rather,
why we do act, that which actually moves us to act, our motivation, our
values.

[Blecause we make choices based on values we experience via
emotion, making moral choices without emotional information is fuile %%

Deploying emotion and narrative to build the motivation Ganz describes, in
the face of threats and hardships, is what organizers do. As he goes on to
explain, by crafting and deploying “public narative, social movement
leaders—and participants—can move [people] to action by mobilizing
sources of motivation, constructing new shared individual and collective
identities, and finding the courage to act.™

Organizing, in short, is a practice and a craft that helps build the capacity
and the courage that collective action requires. It can also directly engage
the threats of retaliation that Bar-Gill and Ben-Shahar emphasize.%5 In part,

92. Andeias & Sachs, supra note 43, at 620-21 (citing RICK FANTASIA, CULTURES OF
SOLIDARITY: CONSCIOUSNESS, ACTION, AND CONTEMPORARY AMERICAN WORKERS 138 60
(1988); Jefl Goodwin & Steven PR, Emotion Work in High-Risk Social Movemens.
Managing Fear in the US. and East German Civil Rights Movemenis, in PASSIONATE
POLITICS: EMOTIONS AND SOCIAL MOVEMENTS 282, 28485 (JelT Goodwin et . eds., 2001).

93. Ganz, supra note 44, at 516 (citing JEROE BRUNER, ACTUAL MiNDS, POSSIBLE
WorLDS 11-25 (1986), MaRiHA NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE
oF Exorions (2001)

94, d. 1527,

95. My goal here s not o refte each premise of Bar-Gill and Ben-Shahar's model, which
does 4 powerul job demonstrating the hurdles a plea ssike Would have to overcome. 1t is
Worth observing, though, tht the model misapprehends some irmportant points and thus ikely
oversates the height ofthose hudles. For example, Bar-Gill and Ben-Shahar are skepical of
defendant collective action in part because,they say, “such multilateral coordination requires
tha all relevant partes be identified in advance,” which is hard o do in this context because
“most defendants do nol know each other” Bar-Gill & Ben-Shahar, supra note 14, at 759
But this argument ignores the upside of hyperincarceration discussed in Part LB above: mass

organizing does this by helping identify creative strategies that maximize
defendants’ resources while blunting prosecutors’ % The diagnostic map of
the penal system’s weak points offered in the preceding part of this Essay
exemplifies some modes of thinking that organizers might deploy in this
vein. Just as critically, organizing can generate new resources from within
the organized community and can deploy them to help people overcome or
weather the blows leveled by the opposition.””

incarceration targets specific communities with preexisting social networks that could and
Would be leveraged as central resources in srike. Likewise, s noted earler, those networks
could be leveraged well in advance of the stike, which undercuts Bar-Gill ad Ben-Shabar’s
assumption that defendants wil not “be able to communicate-—to get ogether and agree on
the commitment strategy” before il is ime (0 act. 1d. Once such agreements are forged,
morcover, Bar-Gill and Ben-Shahar overstte the ¢ase with which strke paricipants could
defect Specifically, they assert that “plea bargainers are oflen invisible” and that theie
defection can thus “ofien pass nnoticed." fd at 760. But the opposite i true: cvery guilty
plea must be entered in open court where there i a constitutionally guarantced right of public
access and observation-—a right that courl-watching organizers have already proven adept at
using in related contexts. CF. Jocelyn Simonson, The Criminal Court Audience in a Post-Trial

127 Hagy. L Rev. 2173 (2014). Important questions remain about the tactics stike

i use (and disavow) 10 encourage solidarity while preserving individual
agency. Cf Andsias & Sachs, supra note 43, a 630 (*Protests must be peaceful, eschewing
both destruction o property and violence against individuals ") But Bar-Gill and Ben-Shaha
are wrong o think defection could or would be invisible. At the same tme, they also
underestimate the material support that plea unions could offer stciking defendans (what
Bar-Gill and Ben-Shahas cal “side payments”)to mitigate the hardships of prosecuto reprial.
See infra note 97, Finally, and perhaps most importantly, Bar-Gill and Ben.Shabar give
insuflicient ttention o the temporal imension of the srike. As Alexander writesin her New
York Times op-ed, the central feature of the srike i ts sudden crashing impact, what she calls
a“tsunami of itigation.” Alexander, supra note 7. 1 not atal lear that prosecutors” divide
and conguer strtegy—in which they methoically march theough D, then D, then Dy, and
50 0n, pcking ofT each srike participant with threats of harsh sentences-— could “unravel” the
tsunai before the deluge swarmps the system, especially given that it would take only about
a5 percent solidariy rate for the strike [0 succeed. See supra Part LA; cf supra note §7 and
accompanying text.

96. Cf Ganz, supra note 4, at 530 (“In fixed contexts in which rules, resources, and
inerests are given, strategy can be assessed in the analytic terms of game theory. But in
sttings in which rules, resources, and interess are emergent—such as social movements—
Srategy has more in common with .. an ongoing creative process of understanding and
adapting new conditions 0 one’s goais.”).

7. As Andrias and Sachs observe, successfol organizers work hard 1o address material
“bariers to movement participation.” Andrias & Sachs, supra nofe 43, at 621 In other
setings, these barrers can include childcare obligations or transportation neds that make it
hard o engage in collective acton. I the contextof a plea stike, material hardships could be
substantially exacerbated. especially for individuals ncarcerated prior to trial of sentenced

Some social movemens have had success by providing material
and fumily support so that members are free 1o paricipate.” 1d. As community
organizer Britany White stresses, @ successful plea solidarty effort would need to devote
Substantial energy to this facet of he campaign. See Britany White, Keynote Discussion at
the National Association of Criminal Defense Attorneys Presidential Summit on_the
Constitutional Right 10 Trial (Dec. 9, 2021) (“Will you walk with me while I carry his bid?
Wil you walk with my family, every day that I'm here?”). Bar-Gill and Ben-Shahas recognize
a version of this poini, arguing that “side payments play an important role in facilitating
coordination.” Bar-Gill and Ben-Shabar, supra note 14,a1 763, In fact,they concede that th
prosecutor's divide and conquer traegy “could be prevented if side paymenis were possible."
14, But again, because they ignore organizing, they give insulTicient consideration to the
possibility that the movement iself could be a source of materal assistance.

In sum, as Andrias and Sachs conclude, “history and social-science
research leaves little doubt that disruptive concerted action,” like a trike, can
achieve success in the face of serious power imbalances and threats of
reprisal—and have in fact been “essential for working-class and poor people
to have a reasonable chance of success at achieving a redistribution in
political (and economic) power.™ None of which is to say that a plea strike
will succeed. ~Clearly, “repressive action by state and private actors
frequently prevails, impeding successful organizing ™ Itis thus essential to
pay heed to the power that prosecutors would deploy to try to break a strike —
power that Bar-Gill and Ben-Shahar helpfully map and distill. 10 Where they
g0 wrong is simply in assuming that prosecutorial power is unbeatable—an
estimation error that flows directly from their failure to consider the role
community organizing could play in motivating and sustaining collective
action. Indeed. by ignoring organizers altogether, Bar-Gill and Ben-Shahar
unintentionally assume away the core of what Susan Burton’s idea really is:
not just a plea bargaining strike, but a plea bargaining union. 101

Beyond this conceptual point, there is one final and more fundamental
rejoinder to Bar-Gill and Ben-Shahar's pessimism. They cannot be right that
plea strikes are doomed to fail, because plea strikes have succeeded in the
past. In fact, on the few occasions in which they have been attempted, their
success has been remarkable. Consider the #120 prosecution. On January 20,
2017, 230 people who protested the inauguration of Donald Trump were
arrested on the streets of Washington, D.C., and charged with a cluster of
crimes, including a felony conspiracy charge carrying the threat of years in
prison. 192 As a group, the #120 defendants quickly recognized the power of
their numbers: the D.C. court system had conducted only 226 jury trials the

98, Andeias & Sachs, supra note 43, at 62128, 631 (citing William A Gamson, The
Success of the Unruly, in READINGS ON SOCIAL MOVEMENTS: ORIGINS, DYNAMICS AND
OUICOES S18, 526 (Doug MeAdam & David A Snow eds, 2 ed. 2010) (noting that “uneuly
groups” tht use insurgent tactcs like strkes “have betier than average suceess”); FRANCES
FOXPIVEN & RICHARD A. CLOWARD, POOR PEOPLE'S MOVEMENTS: Wity THEY SUCCEED, HoW
Tuey Pl 181-84 (1979) (noting that insurgent acions are citcal 0 movement suceess)).
99. 1 621
100, Proponents ofpleastrikes of course focus on this issue, too. See Alexander,supra note
ote 13, a1 1129.
Jights a related and important point. A strike campaign could

. collective power —like the hybrid union-movement Bowie
describes, sec Bowie, supra note 82, at 186—even ifthe stike itsell ultmately “fail” in the
narrow sense of “crashing” the plea bargaining system. C/- Jayadev & Weiss, supra note 19
(distinguishing between tactics and goal)

102 See Elizabeth King, J20, One Year Later: What I's Like o Face Decades in Prison
for Protesting, ROLUING STONE (Jan. 20, 2018, 4:17 PM), hitps:/www rollingstone.com’
culture/cultur.features20-one-year-laer-what-is-like-o-face-decades-n-prison-for-
protesting-117207/ [htps:fperma.cc/BAH2-TKTS]; Adam K. Raymond, Charges Dropped
Against Remaining J20 Inauguration Day Protesters, NY. MAc._(uly 6, 2018),
Tttpsinymag.comiintellgencer 20 1 8/07/charges-dropped.-againstall-R20-inauguration-day-
protestors huml [biips/perma.cc/Z6BL-AVIW),

entire preceding year, fewer than the total number of #120 defendants. 0%
Working together as an organized collective, the #J20 defendants leveraged
this strength to tremendous effect. Within weeks, they launched a joint
defense strategy, complete with defendant-led coordinating commitees
and—most notably—an agreement signed by more than half of the members
o stand together in their demands for trials. In the end, of the 230 people
charged, only twenty pled guilty. Most remarkably, everyone else saw their
charges dismissed, most without ever going to trial. In other words, after
sinking major resources into these high-profile cases, the prosecution did not
win a single conviction against the entire collective. In fact, it lost more than
just its cases in court. When all was said and done, it was the prosecutors
who found themselves under investigation for withholding exculpatory
evidence. !0 And the city ultimately agreed to pay $1.6 million to the
protesters to settle a civil rights lawsuit stemming from their arrests. 05

The #120 case is not an isolated example. Similar stories of successful
defendant collective action can be found in prosecutions of protesters
arrested following the Seattle World Trade Organization protests in 1999, the
Republican National Convention protests in 2000, the Dakota Access
Pipeline protests at Standing Rock, and more. 106 Clearly, these histories hold
essential lessons for those attempting to organize plea strikes in other
settings. Just as clearly, those lessons would need to be adapted. Protesters
united by a shared mission and ideology are not the same as people united by
shared oppression within their local penal systems and ~shared
marginalization within their local democracies. Delving into these histories
is part of this project’s future work. For present purposes, though, the
simplest lesson they offer is also the most important: we know plea strikes
can succeed because they have.

103 See D.C. Crs,, STATISTICAL SUMMARY 12 (2016), itps:/ww.decourts gov stes
defal/files/maters-docs Statstical-Summary-CY2016-Final.pdf [ htps:/perma.ce/TUE9-
2wve)

104 See Sam Adler-Bell, Prosecutors Wikheld Evidence That Could Esonerate J20
Inauguration Protesters, Judge Rules, INTERCErt (May 23, 2018, 2:45 PM), hupsy/
theintercept com'2018/03/23120-trial-project-verita-video! [hips: /pertua.c/PCTQ-SCKQ).

105. Spencer Hsu & Peter Hermann, D.C. to Pay SL6 Million 1o Settle Mass Arrest
Lawsuits from 2017 Trump Inauguration, WAsi. POsT (Ape. 26, 2021, 6:22 PM). hps:/
. washingtanpost.conlocal legal-issues trump-inauguration-arests-setiement.-de 2021
04126/cF4228-a602-1 1eb-£425-T30674923¢a_story.him [hitps:/fperma. cc/QES3-BAHS).

106 Sée Kiis HERMES, CRASHING THE PARTY: LEGACIES AND LESSONS Fou ThE RNC
2000 (2015); Kris Hermes, Collecive Action Behind Bars, UPPING T ANTi (June 28, 2016),
ntips/uppingtheantiorg joumalarticle/1-collective-action-behind-bars [hitps:/ perma.cc/
BALS-YGTT]. Beyond these protester cases, Alschuler describes anecdotal examples (ited
by Bar.Gill ad Ben-Shahar) of plea strikes intiated by defense attomeys in more run-of-the-
mill prosecutions, while also noting that such defendanis “scem almost never to employ the
“general steike.™ Alschuler, supra note 14, at 1250. It bears emphass, though, that
Alschuler’s examples are different in kind from the defendant-led efforts i the protesir cases
described above. Indeed, while the protester effots offer a model that Burton’s plea strke
organizers could emulate, Alschuler's lwyer-led strikes offer cautionary tales of practices to
be avoided. See infra Part 1L

111 DEFENDERS’ DILEMMAS

And what of lawyers? Might they have a role to play in supporting a strike,
alongside the organizers described above? A role to play in leading it?

To the extent lawyers’ actions have been examined by legal scholars in
this context, the fear has always been that they will do 100 nuch to bring a
strike about, That fear is real and important and ought not be ignored. One
need only read Professor Albert Alschuler's anecdotal report of a plea strike
led by defense attorneys to be left with a pit in the stomach. Describing one
such incident, he recalls a lawyer who, upon secing a judge hand down a
harsh sentence, leaped up and said, **That's it! Jury trial on the whole list!”
If the judge asked us why, we’d bluntly tell him: *Because you gave the last
guy ten years. ™97 Nowhere in this story is there any suggestion that the
Tawyer's clients were consulted in the decision, let alone given a meaningful
opportunity to exercise genuine agency over a decision central to the future
course of their lives. Alschuler is right to condemn such behavior as forcing
individual defendants to “suffer an attorey-inflicted sacrifice on behalf of
their fellow defendants,” and to view the attorney’s action as a violation of
trust and loyalty that tuned his clients into “especially victimized victims of
our system of criminal justice."10%

And yet, real as these concemns of overbearing defense lawyers may be,
there is also an opposite risk: not that defense lawyers will be too quick to
force their clients into a strike, but that they will be too insistent in talking
them out of collective efforts.

For a former public defender like me, this is where things get both more
complicated and more uncomfortable. Before becoming a law professor, I
worked in a well-regarded public defender office widely thought to “do
public defense right* From my first day of training, I was steeped in a
practice known as client-centered advocacy, a core article of faith of the
modern-day criminal defense bar.1%% And I practiced it faithfully with over
one hundred clients over the course of my career.

So, it was with some real discomfort that I sat, listening to that prosecutor
on that spring morning panel, as he explained why, actually, he isn’t at all
worried that a plea strike will happen anytime soon. Turning to the public
defender seated to his right, he said, perceptively, “It’s only because of your
individual responsibility to your individual client to want to do the best for
that individual client that makes people not want to jam the system.”

‘Three times in the span of six seconds he repeated the word, individual.
And 1 knew there was truth in what he said. Client-centered advocacy is a
bedrock principle of modem-day criminal defense. Itis also a fundamentally

107. Alschuler,supra note 14,at 125152,
108 1 at 1237.

109, See generally Abbe Smith, Too Much Heart and Not Enough Heat: The Short Life
and Fractured Ego of the Empatlic, Heroic Public Defender, 37 U.C. DAvis L REv. 1203
(2004 Charles ). Ogletsee,Jr., Beyond Justifications: Secking Motivations 0 Sustain Public
Defenders, 106 Hawy. L REv. 1239 (1993)

110 Plea Bargaining Panel, supra note |
individualistic ethic. “My job,” I told my clients time and again, “is to protect
you. Not anyone else—you.”

In this respect, the animating ethos of criminal defense work stands in
sharp tension with a collectivist campaign like a plea bargaining strike. Had
Iheen assigned to represent one of the #J20 defendants and heard her say that
she was on a group text chain with dozens of other defendants organizing
mass resistance and swapping trial strategies, alarm bells would have been
ringing loudly in my head. Al of my training would have led me to caution
her against the risk of her group’s being infiltrated. More fundamentally, I
would have warned her strenuously against the risk of betrayal from within,
and would have urged her to be careful—withholding, really—with her trust
I don’t think I would have been atypical among my colleagues in this
reaction.

“Protect yourself” is hardly a message of solidarity, even if it is an instinct
many defenders will feel somewhere close to their soul. Lawyers trained in
client-centered advocacy will thus be especially primed to exacerbate the
prisoners” dilemma that plea unions would need to overcome if they are to
succeed 111 All of which suggests a dilemma of a different sort. Might it be
that Burton’s potentially transformational idea, rooted in the power of
collective action, could be subverted not just by the strike-busting tactics of
prosecutors, but also by the zealous, individualistic, client-centered advocacy
of defense lawyers?

‘This is a question that 1 can only mark here, with a gesture to a response
that a future essay will have to take up. That gesture is the same gesture
made earlier—not toward public defenders, or even lawyers, as the essential
actors in a plea bargaining strike, but toward the clients themselves and
toward the organizers who might catalyze their collective power.

For all the candid and perceptive things he got right, this is where the
prosecutor on that panel got it wrong. The question is not whether “the
defenders” will get together and say, “We're never going to plead another
client!12 It is whether the people facing prosecution will get together

UL G/ Quigley, supra note 19 ([Lawyering practices that] individualize_or
compartmentalize the problems of the poor and powerless by not addressing their collective
diffcultes and lack of power .. employ many hard-working and dedicated advocates, [but]
even when successful in achieving their defined mission ... empowerment will ot oceur”);
Alschuler, supra note 14, at 1252-53 (“[TJhe lawyer's traditional duty 10 serve his client
ithout reservation may become device for quicting opposition {0 injustice and for
perpetuating unfuimess from one case (0 the nex_.”); Marisol Orihuela, Crim-lim Lawyering,
34 Gro.Ivice. L 613, 652 (2020) (“[TJn criminal defense, the prevailng theory is hat the
Tawyer is accountable 10 the individual, Thi, for some, calls into question how a lawyer
practicing & movement lawyering model could maintain accountability to an individual
client.”),

112, See Plea Bargaining Panel, supra note 1. The assumption that defense lawyers will
be the key actors in sparking a srike is commanplace. Sec, .., LUMMUS, supra note 13, at 47
(“[Clourts are not free, and never have been fre, from the pressure in favor of eriminals that
the very volume of criminal business exerts. The defenders of criminals know ths perfectly.
i thei principal asset”); Roberts, supra note 14, at 1097 (describing backlash to Michelle
Alexander's essay, including from those who argue that “criminal defense attorneys cannot
reform the system on the backs of individual clients”); Alschuler, supra note 14, a 1251-52

themselves—like the bus riders of Montgomery, like the farm workers of
Delano—in an act of collective agency that seeks to deprive the penal system
of “the cooperation of those it seeks to control.”

Building such collective power is not primarily the work of public
defenders. It is the work of organizers. But its success would also require a
fundamentally new model of public defense. One that is closely aligned with
and deeply literate in the theory and practice of organizing. One that shares
insiders” system knowledge generously with organizers as they develop
campaign strategies outside the context of individual cases. And one that,
within those individual cases, suppresses the knee-jerk instinct to caution
clients against trusting one another—and that learns instead to listen closely
when clients express interest in or curiosity about banding together. Most of
all, these news public defenders would need to counsel those clients
thoughtfully, honestly, and ably, not just about the risks of such solidarity,
but about its potentially dramatic decarceral power, too. 114 Simply put, if
your clients are in a union, the client-centered thing to do is to support their
collective action.

CONCLUSION

Susan Burton was on to something when she posed her powerful question
to Michelle Alexander ten years ago. Just how powerful that idea might be
remains to be seen. This much, though, is clear: The American penal
system—marked by massive overextension, hyperincarceration,
fragmentation, and procedural formalism—is more vulnerable to defendant
collective action than it might seem. Just as importantly, while the obstacles
to such action are undeniably real, they could also be surmountable,
especially if organizers and defense attorneys learn to operate in tandem,
supporting each other and learning from one another, with organizers in the
lead

(“When s public defender sends a meriless case 1o tria a part of a strike. he disregards the
probabiliy that his clent could have secured more lenient treatment by pleading guilty.”);
Bar-Gill & Ben-Shahar, supra note 14, a1 761

113, Alexander, supra note 7.

112 G Roberts, supra note 14, at 1100 & n.44 (“Defense attomeys canno force their
clients 10 g0 10 tial or decline o plead guily: nor can they coeree cliens 1o do so. But they
can offe sealous representation that allows clients 0 make truly voluntary choices, and thit
representation can include an invitation (in appropriate cases) o partiipate in collborative
effor to change the system by forcing it o bear Some o the real costs of mass misdemeanor
processing™); Stephen Ellmann, Client-Centeredness Multipled: Individual Autonomy and
Collective Mobilization n Public Interest Lawyers” Representation of Groups, 78 V. L. RE
1103, 1123 (1992) (“People’s membership in groups is often itelf an expression of their
individual autonomy.™).