And a game it is.
Every so often, because that is the nature of the beast, a judge will ask the lawyers during a pre-trial if they’re “ready to put numbers” on it. Either today, or next time. Numbers: the sanitized way of saying “let the dance begin”. When cases are thought of in terms of numbers, it’s easy to be dispassionate, to be detached from the sad reality underlying the wheeling and dealing.
Numbers are a way to numb yourself to the concept of incarceration. And numbers are common place. Sometimes I think numbers are thrown around without any regard to their actual value. Just as in science, numbers have no meaning if they don’t have units. Take this example:
Try this problem: a train of length 2, weighing 200, travels from Denver to Santa Fe at 15. How long did the trip take?
Yeah, that means nothing, right? Just as I feel that often “numbers on a case” mean nothing to the parties uttering the words. 10/5/3 is a common refrain. 20, 25, 30. As the numbers keep getting bigger, they shed meaning.
10/5/3, in our terms, is a sentence of 10 years’ incarceration, suspended after 5 years of jail time, followed by 3 years on probation. But when you say 10/5/3, you can avoid ugly words like jail time or incarceration. And we throw around numbers like candy. “Well the State wants 12/6/5. What’s your counter-offer? Make it reasonable.”
Reasonable. What’s reasonable? It’s a barter, a trading of liberties for wrongs committed. The whole thing is ugly. And yet it may be the only dignified way of resolving criminal prosecutions. Going to trial is easy. Declining to prosecute is easy. It’s this numbers game that the most difficult part.
What do we do when “put numbers” on a case? We assign an arbitrary value to the actions of one person, usually against another. What’s taken into account? The injury, society’s view of the heinousness of that act, the loss to the victim, the propensity of the offender to offend again and rarely the person who committed the act. But it’s still arbitrary in the end. Because they’re just numbers to us. None of us – the judge, the prosecutor or me – have to actually do the time. It’s easier to say “20”, when you don’t have to worry about what it really means.
It’s a struggle, honestly. A struggle between my acknowledgment that society has to exact its revenge for crimes committed against it, my duty to my client, my pragmatism and ultimately my utter horror that we are about to deprive someone of their freedom for any period of time.
I have a really difficult time telling a client to accept a plea offer that involves any jail time, let alone numbers in double digits. I do it, because I would be a lousy lawyer if I didn’t. But every time I hear a number, or utter a number, all I can think of is if I had to do that time: the things I’ve done over that time span going backwards; the things I will do going forward. And then I look at the man sitting in front of me and realize that there is no hope. That we’ve treated years of his life like chips in a game of poker. They wanted 5, I offered 3, we settled for 4.
There has got to be a better way.