Taxing the system

“We should just put everything on the trial list. That’ll learn ‘em” is an idea that every young, wide-eyed, idealistic criminal defense lawyer has when she is beginning the slow descent into disillusion. I first heard it when I was interviewing for a job in my third year of law school. I said it recently, out of frustration with the State’s adamant refusal to acknowledge the glaring holes in their case. It is a dangerous idea and so it surprised me to see it espoused in the editorial pages of the New York Times by someone who claims to be a civil rights lawyer (more on her later).

The idea, for the uninitiated, is simple enough: 90% of criminal cases resolve via plea bargain; innocent people end up in jail; the system is rigged. So let’s fight it with insurrection. Overload the system, the system crumbles, justice is served. No state is equipped to handle the volume of 100% of cases going to trial. There isn’t enough money in the world to make that happen.

It’s appealing, sure. But only in theory. And the greatest evil the theory seeks to fight – the rigged system – is the greatest reason this idea is dangerous if ever implemented:

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The system is rigged alright. Rigged so badly that cases with almost no evidence are rarely dismissed, that people who do exercise their right to a trial often end up with significantly higher sentences as punishment for the impudence of exercising those rights, that juries are predisposed to convict because innocent people don’t get arrested.

An idea like this can only originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.

When I brought this up recently, a colleague looked at me and said “which client are you willing to sacrifice and how many?” The answer is none. As Norm so appropriately puts it:

Only fools, the naive and bad propagandists look for “justice” in the criminal courts. Clarence Darrow nailed it a century ago: “There is no justice in or out of court.” All that exists are interests. A criminal defense lawyer who puts his sense of justice ahead of his client’s interest has no business appearing in court. None.

Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.

Only someone who hasn’t had to repeatedly stand by clients as they are led away to serve weeks, months and years would offer up those same clients as lambs to the slaughter. Only someone who purports to be a civil rights lawyer but uses the phrase “court-appointed lawyer” when “lawyer” would suffice would propose an idea to destabilize the system at the expense of real, living, breathing people without acknowledging the disastrous consequences.

[Update:] Upon further reflection, I should state that there is a valuable message in this approach: that we should not be afraid to try cases, to stand up to poor offers and to essentially hold the State to its burden. You try cases that are worth trying, that have a shot at success, that present little additional downside to the client. And there are cases that you must try: where the client wants it and where there’s no functional difference to the client between losing after trial and pleading guilty to whatever offer may be on the table. The common thread, obviously, is picking the one that benefits the client the most. Sadly, we are in the crisis management and mitigation business. Clients don’t come to us to uphold some lofty ideal; they come to us to stop the tide as best as possible. It would be malpractice and a disservice to require them to put aside their best interests because we need to make a point.

Do it when you’re arrested, not when you’re defending someone else’s liberty.

There are ways to fix the system, albeit slow and mostly ineffectual: talk to your legislators, educate the community, run for a seat on the highest court. This is not one of them.

My struggle is against the system that wishes to incarcerate them. I won’t join it in the name of a mirage.


[H/T: Bobby G.]


A solitary epiphany

“They treat me like an animal, so I’m going to act like one”, a client once said to me at the end of a two hour meeting in which we had discussed his life and the host of disciplinary problems he was experiencing in jail. “I’m not an animal”, he continued, “but in here, when you’re surrounded by the smell of piss, shit and blood every day and when they [the guards] spit at you and tell you you’re not human, but an animal. you become one”. He ended with the strikingly poignant “fuck them”.

The client was in solitary. He had a concrete cell with a thick metal door and no window. He was fed through a slot in the door and there was a one inch wide and 5 inch long “window” on the door of his cell that looked out onto a narrow corridor and other similar doors. He was, at times, chained in his cell. He’d had a TV for a bit, but they’d taken him away. He’d had a few books, but they wouldn’t allow him to have more than one or two at a time. Toilet paper was scarce. He could only take a birdbath. He hadn’t been out of his cell in days. He only got one hour a day, by himself in a cage, in a concrete “courtyard” where the walls stretched 30 feet upward like a chimney and an opening at the top that was covered with a grate, also like a chimney. Sunshine was something you imagined, not experienced.

Whether he, or any other client of mine deserved to be held in those conditions is something I will not discuss. But their experience, their conditions are common. In this State and throughout the country. At CT’s Northern Correctional Institution – the only Level 5 facility in the state – there are 310 staff members for 352 inmates. I don’t know the exact number, but I’m willing to bet that a large majority of them are held in solitary confinement or its equivalent.

At least 25,000 prisoners — and probably tens of thousands more, criminal justice experts say — are still in solitary confinement in the United States. Some remain there for weeks or months; others for years or even decades. More inmates are held in solitary confinement here than in any other democratic nation, a fact highlighted in a United Nations report last week.

The concept of solitary confinement has some appeal, if only superficially. Isolate a troublesome inmate as a punishment and hope that they reflect upon their actions that landed them there. Deprive them of human interaction and they’ll learn to behave well with others.

But anyone willing to give the concept more than a minute’s thought can point out the serious flaws with this argument. Depriving someone of human interaction and depriving them of humanity are two entirely different beasts, one far more dangerous than the other. As anyone who’s ever been laid up sick at home for days on end – or someone who’s ever gotten stuck in an elevator or between locked doors in a jail – can attest, the sense of isolation and abandonment seriously distorts our mental health.

And our prisons are full of people – diagnosed or otherwise – who suffer from mild to severe mental illnesses. Solitary confinement only serves to exacerbate and fine tune.

Only lately, it seems, has the message begun to get through:

Many states continue to house inmates with mental illness in isolation. Some inmates appear to function adequately in solitary confinement or even say they prefer it. But studies suggest that the rigid control, absence of normal human interaction and lack of stimulation imposed by prolonged isolation can cause a wide range of psychological symptoms including insomnia, withdrawal, rage and aggression, depression, hallucinations and thoughts of suicide, even in prisoners who are mentally healthy to begin with.

States are closing their supermax prisons, taking people out of solitary and the results are surprising:

They allowed most inmates out of their cells for hours each day. They built a basketball court and a group dining area. They put rehabilitation programs in place and let prisoners work their way to greater privileges.

In response, the inmates became better behaved. Violence went down. The number of prisoners in isolation dropped to about 300 from more than 1,000. So many inmates were moved into the general population of other prisons that Unit 32 was closed in 2010, saving the state more than $5 million.

The transformation of the Mississippi prison has become a focal point for a growing number of states that are rethinking the use of long-term isolation and re-evaluating how many inmates really require it, how long they should be kept there and how best to move them out. Colorado, Illinois, Maine, Ohio and Washington State have been taking steps to reduce the number of prisoners in long-term isolation; others have plans to do so. On Friday, officials in California announced a plan for policy changes that could result in fewer prisoners being sent to the state’s three super-maximum-security units.

Unfortunately, as is the case with most criminal justice reforms, this paradigm shift comes not of some fundamental epiphany regarding the way we treat those among us, but from economics. They’re just too damn costly. And that’s fine, I suppose, for it brings about a favored result. But it does nothing to correct a greater problem prevalent in our correctional systems: that there’s very little correction and rehabilitation going on. There needs to be a change in attitude towards inmates. Most of them – almost all, in fact – will be released some day. They will rejoin us in society. They will live among us and try to work side-by-side with us.

Will they come out with a greater disdain for society and its rules and the better nature of us all? Or will they come out believing that no matter what, they’re still animals, and having had that drilled into their heads for years and decades, decide to act accordingly?

While celebrating the shift away from harsh, torturous conditions, I fear that the only actual difference is a change of scene for this play. The content will remain the same. And until we – all of us – accept and understand that the near inhuman treatment of others only makes us like them and them like us, safety will only be an illusion. And humanity a forgotten ideal.

Pardon me

Just before he left office in January 2012, Mississippi Governor Haley Barbour pardoned a whopping 198 people at once. Despite the fact that only 10 of them were still incarcerated, the pardons set off a firestorm and gave birth to a lawsuit seeking to invalidate the pardons, not because they weren’t deserved or that the Governor didn’t have the authority to issue them, but rather because he allegedly hadn’t followed the notice requirements.

Today, the Mississippi Supreme Court issued a 6-3 ruling [PDF] holding that the pardons were valid because to rule otherwise would violate the separation of powers. All the opinions together total 77 pages, but they are worth reading from start to finish because they provide an in-depth analysis of the separation of powers and our system of checks and balances. The opinions are an enlightening walk into history underscoring the pivotal importance of the independence of the three branches of government. The granddaddy of all separation cases, Marbury v. Madison, is front and center.

Of course, while this furor isn’t about the fact that almost two hundred criminals were pardoned, it really is. People are angry for nothing other than the simple reason that some “lawless convicted felons” (a quote from the operative dissent) got some supposed windfall.

But what really, does this pardon do? Does it negate the crime? Does it negate the years of punishment? Of course not. All it does is gives some people a chance at rebuilding lives unburdened by the stigma and trappings of a criminal conviction. You can argue that some of these 198 don’t deserve it. You can argue that some people deserve to have less than meaningful opportunities as punishment for what they’ve done. You can argue that the Constitution shouldn’t give a Governor unchecked power to do as he pleases in this regard. Heck, you can amend the Constitution to do just that.

As one concurrence points out, that’s not the issue. The issue, simply, is whether judiciary can even begin to examine the exercise of authority that exclusively belongs to the executive? As the majority eloquently puts it:

the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of  government has constitutional authority to void a facially -valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124’s publication requirement.

In other words, the procedure for exercising executive power is within the province of the executive alone. I’m not sure which side I come out on in this issue. It’s certainly not an easy one, nor one that was made lightly, I suspect. On the one hand, the implications of holding that courts can and should review executive decisions are staggering. Can you imagine courts reviewing and inquiring into every vote taken in every legislature throughout the country? The focus of the courts’ review has to be the content of the laws passed by the legislature and the actions taken by the executive, not the process by which those laws came into creation.

But, on the other, is the danger that facially void laws come into effect: what of a bill that is signed by the Governor that has not been passed by both chambers of the legislature? That, after all, is also merely the process by which laws are made.

There is a distinction, I suppose, but one that is ever so slight. And that’s what makes this opinion fascinating. It a decision of pure Constitutional interpretation that allows us all to act as if it were still 1803.

Seeing as how I mentioned Marbury, I have to link to this re-enactment again:

We need to talk about an injustice

While it was happening, I heard from many on Twitter that Bryan Stevenson‘s TED talk on injustice was riveting and a must watch. It’s now available online and I’ve linked to it below. This is your homework for the day. Watch it, think about it and we’ll come back tomorrow to talk about it (and injustice).


You really should object when…

An avid reader sent me this case that has been making the rounds of a local listserve and I figured it was too good not to share. I’ve tried to think of a reason why one wouldn’t object in the following situation, but I’m coming up empty handed. Candy for anyone who can think of a rational reason. One of the issues raised on appeal in Zabin v. Picciotto, 73 Mass. App. Ct. 141 (Mass: Appeals Court 2008) was:

e. As the trial approached the end of October, the jurors asked the judge if he would allow them to wear costumes on Halloween. After consulting with counsel for all parties and hearing no objection, the judge allowed the request. The defendants contend that the presence of jurors in costumes turned the trial into a circus and denied their rights to due process.[42]

With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings. However, as to the defendants’ claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.

[42] The defendants also assert that some of the plaintiffs’ counsel handed out candy to the jurors. They further claim that, on another occasion, a proposed “cast list” was circulated for a Hollywood movie version of the trial. The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the “cast list” was circulated to the jury.


The United States of China

China, not a country known for subtlety, has turned a mirror on ourselves by taking two of the most beloved forms of American entertainment and combining it into one: reality television and the death penalty. And they’ve struck viewership gold, with 40 million viewers every Saturday night for 5 years. The show, which is a slightly more twisted version of ‘To Catch a Predator’ features a Ms. Ding with:

harrowing – some would say voyeuristic – footage of prisoners confessing their crimes and begging forgiveness before being led away to their executions.

The scenes are recorded sometimes minutes before the prisoners are put to death, or in other cases when only days of their life remain.

The inhumanity of this all is staggering:

In one scene, a prisoner in his 20s falls to his knees before his parents, who have been allowed to see him. He pleads: ‘Father, I was wrong. I’m sorry.’

Moments later, his parents see him about to be led away to his death. His distraught mother apologises for beating him once as a child and implores her son: ‘Go peacefully. It’s following government’s orders.’

Prison officers then push her aside and drag him away.

We are in elite company, with only 3 other countries separating us from China in number of executions (2010 data). And yet, somehow, I have this nagging feeling that there are some within our country who rejoice at executions the way the Chinese have been riveted to their TV screens; that the increasingly louder howls for blood perpetuated by the 24 hour news cycle and its Voldemort make ‘Interviews before Execution’ an idea that is very much alive here in the US, even if it isn’t on our TV screens.

The vengeance in Ms. Ding is something oft seen stateside:

Denying her show is exploitative, she said: ‘Some viewers might consider it cruel to ask a criminal to do an interview when they are about to be executed. On the contrary, they want to be heard.

‘When I am face-to-face with them I feel sorry and regretful for them. But I don’t sympathise with them, for they should pay a heavy price for their wrongdoing. They deserve it.’

And when we are face-to-face with the same sort of glee exhibited by a country that shares nary another value with us, it should give us pause. Is this who we really are:

The case that has drawn the largest number of viewers so far is that of Bao Rongting, an openly gay man who was condemned to death for murdering his mother and then violating her dead body.

Three extra episodes were devoted to his story as viewing figures soared. Homosexuality is still regarded as taboo in most of China, and the sensational trailers described his interviews as ‘shining a light on a mysterious group of people in our country’.

When Bao was executed, no family members turned up to say farewell. His final conversation before being led to his death was on camera with a decidedly wary Ms Ding, who admitted to being unsettled by his sexuality. In a remarkable scene, he asks if she will do him a last favour by shaking his hand before he dies. She hesitates, before lightly touching his hand with her finger and then pulling it away.

She later confessed to being unsure if she should have shaken his hand, saying with obvious distaste: ‘There was a lot of dirt under his nails. For a long time there was a feeling in this finger. I can’t describe that feeling.’

Is this who want to be? Aren’t they doing what we already do, just more explicitly? A spokeswoman for the BBC, which is scheduled to air a documentary on this show, said:

The programme provides a revealing insight into Chinese attitudes to the death penalty. By showing rare footage of China’s death row alongside interviews with convicts, judges and journalists, it opens up an aspect of China that is normally hidden from the world.

It’s also opening up an aspect of ourselves that we wish to hide. Are we strong enough to face it and reject it? Or do we succumb to the power of anger and turn up the volume?


Alabama, United States

Back in December, 2010, Alabama’s preposterous prosecution of Gabe Watson caused me to write this post questioning whether The Yellowhammer State (seriously?) had forgotten that it was located within the territorial boundaries of these United States and not in Oceania, which it was at war with.

Concisely, Gabe Watson’s wife died during a diving incident in 2003. 5 years later, because that’s how laid back they are in Oz, he was indicted in Queensland for murder and eventually pled guilty to manslaughter receiving an 18 month sentence.

But that didn’t sate Alabama Attorney General Troy King, who is reported to have remarked: “18 months? In Alabama you get 18 months just for being black!”1 So he opened his favorite refrigerator and pulled out his favorite lunchtime snack: that venerable ham sandwich and had Watson indicted in Alabama for murder. For a death that occurred in Queensland, Australia. The theory, naturally, was that he planned his crime in Alabama and thus that – oh, I don’t know, just go with it, okay?

And so on went the prosecution of Gabe Watson, all the way to trial, causing most people with any knowledge of how things are done in Alabama that a capital conviction was forthcoming.

But those people don’t know Judge Tommy Nail, apparently (Can I point out how awesome it is that he goes by Tommy, not Thomas or Tom? Does he wear leather to work and ride a hog?). Because Judge Nail reminded the Yellowhammers that we still operate under laws and those laws come from the Constitution:

“The evidence is sorely lacking that it was an intentional act,” Nail said in response to a defense motion for acquittal after the prosecution completed its case.

“The only way to convict him of intentional murder is to speculate,” Nail said. “Nobody knows exactly what happened in the water. I’m sure we’ll never know.”

Nail also said the prosecution’s evidence about financial gain was a stretch, and he heard no evidence proving a profit motive.

And you know why there wasn’t any evidence of financial gain or profit motive? Because Watson couldn’t have profited. The beneficiary of his ex-wife’s life insurance policy was her father, who pushed King to prosecute Watson.

This silly, wasteful prosecution was rightly dismissed by the judge, but not after much money was spent and stress caused and the loss of liberty threatened. All for what? A political ploy? Publicity? I refuse to believe that King honestly thought he was pursuing justice in this case by prosecuting Watson on the most threadbare of theories. Someone who takes elected office must have a greater sense of responsibility to the citizens of the state and to justice. But there are or will be no consequences stemming from this for King. He’s free to terrorize someone else tomorrow, perhaps someone without the media attention surrounding Gabe Watson, thus escaping close scrutiny. Maybe there are other judges who aren’t Judge Nail, willing to give the prosecution the benefit of the doubt and deposit barely-weak cases in the laps of mercurial jurors.

Judge are the second gatekeepers of justice; prosecutors are the first (jurors are the last). We should demand more of them; we should expect more. If we don’t, we’re all a few minutes from midnight, about to turn into ham sandwiches.



1He said nothing of the sort that I know of. I mean, anything’s possible, I suppose, but I just made up that quote because I wanted to perpetuate stereotypes about Alabama. It’s parody. Don’t sue me.