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The criminal justice system should be about equal justice for all, and not a perpetuation of an underclass

Oct 27, 2011 The criminal justice system should be about equal justice for all, and not a perpetuation of an underclass

When I became a public defender lawyer after two years working with a corporate law firm, I went from a high-rent office two blocks from the White House with a fancy desk to a non-descript office that was literally across the freight railroad tracks, two shabby District courthouses and a Circuit courthouse with worn wooden hallways including portraits of unsmiling dead men, and one of the most popular eateries for lawyers and judges at the back of a variety store. I had a burning desire to do criminal defense for indigent clients, and I was finally doing it.

Many of my public defender clients with prior criminal convictions and other pending cases spoke of prior convictions in kangaroo court, taking care of criminal arrest detainers in other jurisdictions, and “getting it over with.”

There is no such thing as “getting it over with,” for instance by pleading guilty to get out of jail, only to risk future probation violation charges for the suspended time of one’s sentence, and besmirching one’s reputation when seeking jobs, travel visas, and other collateral benefits. The results of rashly “getting it over with” will follow the person who does so.

When I started practicing in that county, each afternoon in District/misdemeanor court, judges would hold bail hearings by closed circuit television hookups to the jail, with those arrested the previous business day who had not paid their bail. The judges offered some of them the chance to come to court the next day to plead guilty, for what was officially called Special Disposition Court, but which many inmates experiencing such dockets called Kangaroo Court, where they would plead guilty to be released that day, but often with suspended jail time and probation held over their head, with many to be charged later on with violating probation, sometimes violating existing probation and parole with their guilty plea, and increasing their sentencing guidelines for any pending or future criminal cases. Many had very small bonds, as low as $500 I believe. This, then, was a kangaroo court docket effectively geared to the poor, pleading guilty rather than waiting in jail at least thirty days for trial, pleading guilty without having sufficient opportunity for a public defender lawyer to explain the strengths and weaknesses and defenses for their cases, and pleading guilty in a courthouse where, on the trial date, so many misdemeanor cases got dismissed for the absence of witnesses, inactivated on the condition of no further criminal action and sometimes such conditions as restitution and community service, and continued for the absence of witnesses and dismissed on the next court date when the witnesses did not show.

With each new theft and felony conviction, a person becomes all the less employable, all the more likely to rely on the welfare state, and all the more tempted to eke out funds from criminal activity when employer after employer see their conviction record and refuse to hire them.

It does not work to reply with such pithy retorts as “You do the crime, you do the time.” For one thing, plenty of actions should not be criminalized in the first place (marijuana, for instance), and plenty of actions that can get convictions call for prosecutorial discretion not to prosecute (for instance, refusing to charge an agitated and otherwise harmless person with disorderly conduct). For another thing, convictions bring not only the potential of jail time, but also potentially high barriers to job and educational opportunities, immigration benefits and other collateral benefits. Additionally, many innocent people get convicted, as we full well know from the stories of the many death row inmates later exonerated by DNA evidence. Many innocent people plead guilty, when their chances of acquittal look bleak and their risks of infinitely worse punishments look too risky. Many innocent people drain their bank accounts to be represented in court. Many guilty people get sentences that are entirely disproportionate to their actions and who they are, either because judges and/or prosecutors are seeking “uniformity” in sentencing, because of mandatory minimum sentences, or because the judge and/or prosecutor would not pay full time and attention to the unique circumstances of the defendant and his or her crime, lest they not finish in the courtroom before dinnertime.

In the same county, there s a judge who handles misdemeanor appeals and jury trial demands as the first gatekeeper in the higher Circuit Court before the trial date is set, and makes hordes of criminal defendants offers many of them feel they cannot refuse, so long as they plead guilty. This judge moves quickly through his docket, skipping the Supreme Court’s mandate to assure that guilty pleas are free and voluntary (Boykin v. Alabama, 395 U.S. 238 (1969)). For those criminal defendants with skilled lawyers, this judge is a safety valve from harsh sentences in the lower court, a comfort zone to pray a jury trial away from a trial judge who is likely to convict and give a stinging sentence, and an assuring portal before proceeding to the unknown of what judge will handle one’s trial date, and whether that judge will punish the defendant in sentencing for having taken up the court’s time on misdemeanors rather than on more serious felonies and on the court’s overflowing civil case docket (and I am thinking more and more about requiring certain types of winning civil litigants where no government party is involved, to pay a percentage of some of their collected judgment or fee schedule therefrom, for going to the court rather than with the private arbitration or mediation route). I still wish this judge would follow Boykin.

For the remaining Circuit Court judges, this judge who makes offers many cannot refuse helps reduce their still overburdened dockets.

For criminal defendants who appear before this judge pro se, they walk on ground infested with landmines, not having been properly advised about the strengths or weaknesses of their cases, their immigration risks, and their probation and parole violation risks, let alone the risks to their livelihoods. Not knowing about their post conviction rights, they do not seek relief to reverse their convictions with this judge, which are eminently reversible through the assistance of a qualified lawyer via the coram nobis and post conviction law process.

In criminal court, the haves are able to pay qualified criminal defense lawyers. The have-nots are able to obtain public defender and court-appointed counsel (plenty of whom are excellent). Then there are the working poor who are too poor to afford a qualified lawyer and too “rich” to qualify for indigent defense counsel.

A disproportionate number of non-white, poor, and undereducated people get prosecuted for non-white-collar crimes. Regardless of the culpability of those being prosecuted, the criminal justice system in the United States helps perpetuate an underclass with fewer job opportunities due to their criminal records, and consequently with more limited financial resources to help provide their spouses and children with educational, financial, employment, and societal opportunities. The psychological and developmental impact can be profoundly negative on children whose parents get convicted, let alone whose parents get long prison sentences.

To this day, I am not aware of a Jean Valjean defense in America’s criminal courts, to avoid prosecution and conviction for stealing a loaf of bread to feed his starving nieces. With unemployment remaining sky-high, more thefts should be anticipated. With more misery from unemployment, more self-medication through illegal drug use (by people who do not have health insurance) should be anticipated. With more such crimes come more arrests and a continuation of an underclass.

This blog posting is not here to advocate more socialism than we already have. I do encourage people to reach out to others so they feel less isolated and cared for compassionately by their fellow human beings. I do not want to change our legal system to a communitarian one. In any event, Hillary Clinton’s cover title phrase is certainly correct that it takes a village to help children grow and thrive, and to help plenty of adults lift themselves from what at first blush seem to be dire straits. That will help reduce arrests and convictions.

In the meantime, the criminal justice system remains overgrown, overly expensive, and an excessive burden on our tax base. The more unemployment there is, the more will be the criminal defendants who qualify for public defender and court-appointed counsel, thus burdening the tax base all the more. It is time to legalize marijuana entirely, along with prostitution and gambling, and to heavily decriminalize all other drugs, eliminate mandatory minimum sentencing, the death penalty, and drunk driving per se blood alcohol content criminal laws. Then, we will have not only more manageable governmental budgets that more responsibly address the realities of our nation’s financial and government budget crisis, but only then will we have a better quality criminal justice system in which more people will have confidence and respect.

Before the year is out, please visit a criminal courtroom while it is in session, take a tour of a jail (or visit people in jail) or both. With our having elected representative government, it is critical for every voter to have at least an initial understanding of what happens in court and jails, rather than merely seeing them from the outside.

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