Tuesday, March 20, 2007

The Worst Thing I've Ever Done

Sorry, I'm not going to tell you. Honestly, I don't even know what the worst thing is that I've ever done. (I'm sure my parents or my wife could name a few candidates, but I wish they wouldn't.) In any event, I don't want anyone to think any less of me or judge me by the negatives. There is more to me than any one bad thing. I trust that's a sentiment shared by many.

I represent people accused of bad things. Many of them have, shall we say, checkered pasts. But most all of them have positive qualities, too. They can be charming, friendly, compassionate, and even sympathetic. I confess, I actually like most of my clients, notwithstanding the bad things they may have done.

As Sister Helen Prejean reminds us, there is more to a man than the worst thing he's ever done. Unfortunately, that doesn't seem to be our society's creed. But we should no more expect others not to judge us by our worst acts than we should insist on uncompromising condemnation of people who have committed singular misdeeds. There is good in everyone, and everyone should be able to overcome their past. Save, of course, living down their good reputation (so says Oscar Wilde).

Friday, March 09, 2007

It's the Constitution, Stupid

New Orleans hasn't cornered the market on under-funded public defense. Apparently the Georgia system is struggling to get by on its budget funded by court fines and fees, and one particularly expensive case is threatening to break the bank. I feel their pain.

I'm all for keeping a tight watch on expenses. After all, the public tax payers should be entitled to have their money well spent. But it seems that at least one state legislator is missing the point. The Georgia State House Speaker protests that a judge is telling the legislature what it should be funding. The audacity! I suspect the offending judge was merely pointing to a little thing called the Constitution. And we know from our good friend Gideon that the State is responsible for paying for counsel when the defendant is too poor to pay for a lawyer himself. Justice isn't free.

The House Speaker apparently still complains that the system lacks sufficient "checks and balances to prevent an unelected judge from seizing control of the purse strings which elected lawmakers are charged with overseeing." No, again I think the blame goes to the Constitution. Sometimes democracy is an expensive proposition. (Where are the complaining legislators when it comes to the extraordinary resources spent prosecuting victimless crimes and silly political witch hunts?) Thankfully we don't have to leave everything to the prevailing winds of elected lawmakers.

Thursday, March 01, 2007

The End of Trials

Trial by jury is one of the most sacrosanct and venerable concepts in our justice system. Indeed, jury trials have played a central role in civilized society at least since the time of Aristotle. Important trial safeguards are enshrined in our Bill of Rights. Most school children seem to appreciate the concept of having guilt or innocence decided by a jury of one's peers. While constant press coverage of high-profile trials and slick tv shows give the impression that jury trials remain the final arbiter of most defendants' guilt, the reality is that most defendants elect to forgo a trial altogether. And it's not because every guilty person suddenly has a come-to-Jesus awakening.

Perhaps the most significant factor is the scheme for doling out sentences. In this get-tough-on-crime era, even petty criminals face huge amounts of jail time. In Louisiana, a first time offender guilty of drug possession could get five years to think about his misdeeds. Of course, judges recognize the immense power they wield, and it is unlikely a first-time offender would be sent to jail for so long. Prosecutors and defense lawyers know that, too, and thus they usually negotiate a plea bargain. Thus, rather than go to trial, many defendants charged with a first offense will opt to plead guilty in exchange for probation and a suspended sentence: stay out of trouble during the probationary period, and you won't serve any time. The risks of going to trial and facing uncertainty in sentencing are simply too high.

For repeat offenders, the stakes are even higher. Under Louisiana's habitual offender statute, a person convicted as a two-time offender must be sentenced to a minimum of 50% of the statutory maximum, and the maximum allowable sentence is doubled. Thus, two-time drug user would face two and a half to ten years in jail. A third offense weighs heavier still, and a fourth offense results in a range of twenty years to life. (Louisiana has a traditional three-strikes law as well. Thus, for some crimes, even a third offense results in mandatory life in prison.)

No doubt, repeat offenders have a strong incentive to negotiate a favorable plea to avoid sentencing as a habitual offender. Needless to say, those who go to trial and lose don't get any favors. For someone with a record, even if truly innocent, the risks are simply too high for rolling the dice in the jury crap shoot at trial.

And that's just the problem. When only guilty people are forced to take pleas, saving the system the burden of trials, the system arguably is functioning as it should. But many defendants are innocent, or at least their guilt is in serious question, and juries are deprived of the opportunity to mediate the facts. That's a great disservice to our justice system. Juries not only determine facts in particular cases, but they act as checks on law enforcement. They keep the system honest by letting police know when they're overreaching (or by discrediting their testimony). They tell us when prosecutors have become persecutors (by over-charging cases). They tell us how much evidence is required before we send people off to jail. In short, they tell us what the limits of law enforcement should be.

Unfortunately, many innocent people have no choice but to take a plea to avoid the risk of sentencing after conviction. This is especially true for people who have criminal histories. It's natural to think, "once a criminal, always a criminal." Police, innocently or not, often work under this assumption and target felons for more arrests. Many of those defendants, however, are in fact innocent of the latest charges. But we'll never know because no one wants to roll the dice at trial when the stakes are so high.