Why, then, do I “defend criminals”?

First off — this is that ugly idealism again raising its head — I don’t buy into the idea that I defend criminals.  Wh-? Huh?

“But you’re a criminal defense attorney!,” you shout.  (You do know I can’t actually hear you, by the way, don’t you?)

At any rate, yes, I’m a “criminal defense attorney.”  I didn’t pick the moniker.  It’s what we who defend people who have been accused of committing crimes are called.  So I don’t defend criminals; I defend people accused of committing crimes.

“Words.  Words.  Mere words,” you say.  I really can’t hear you.  I hope you know that.  I’m just assuming, based on conversations with actual people, that this is what you’re saying.

Increasingly, though, these are not “mere words.”  If they ever were.  Mere words would be things like “innocent unless proven guilty,” or “the burden of proof is on the prosecution.”  Reality is that, increasingly, innocent people actually do get arrested, charged with crimes, sometimes have trials, and too often go to jail.  Or prison. Or worse.

Estimates of the number of innocent people in prison vary. Justice Scalia — against all reason — estimates it to be “less than three-hundredths of a percent — 0.027 percent, to be exact.”

Me — but, remember, I’m an idealist — I think even 0.027 percent is an outrageous shame.  I’m not the world’s greatest mathematician (that’s one reason I became a lawyer), but with 7.3 million citizens in the U.S. prisons system in 2007,¹ I estimate that’s getting close to a couple-thousand innocent people whose lives have been stolen.  (For you, “Justice” Scalia, that’s 1,971.)

You want to be one of those people and tell me that’s not bad; mistakes happen; you can’t make an omelet without breaking a few eggs?

Besides, I think that number is clearly wrong. The number assumes that Scalia and the people upon whom he relied are correct about the percentage of innocents in prison.

The authors of Convicted But Innocent: Wrongful Conviction and Public Policy (1996) think a conservative estimate is closer to 0.5%, which based on calculations using 1990’s numbers yields around 10,000 innocent people wrongfully convicted.  And they believe the number is actually quite a bit higher.  And in 1990, there were half as many people in prison as there are today, so the actual number using their calculations today would be 20,000 innocents in America’s prisons.

The estimate discussed in Convicted But Innocent is based on asking judges and prosecutors what they think the number is.  Not exactly the most scientific method for making such determinations.  After all, judges and prosecutors tend to be biased in favor of believing that those convicted accused of a crime were guilty.  The authors themselves say that if more public defenders were asked, the number would be higher.

Also,

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes and an unknown number of innocents have not yet been exonerated.²

Another study, based on death row inmates, shows that since 1977 five-hundred-and-fifty-three have been executed, while eighty were released from death row after being found innocent.

For every seven executed, one innocent person is freed — an “error rate” of more than twelve (12) percent. In the State of Illinois, 12 people have been executed since 1977 while 13 have been released after proving their innocence — an error rate of 52 percent.³

The Truth & Justice Foundation notes that estimates for wrongful convictions range all the way from a low of 3 to a high of 15%.

Whatever the number, it’s growing.

The length of sentences is growing, too.  In 2004,

One out of every 11 persons in the federal and state prison systems in the US [was] serving a life sentence, four times the number of “lifers” in 1984.⁴

Watson’s article is an eye-opening read.  Among other things, it notes that 60 percent of California’s “three strikes” cases involve non-violent offenses — property offenses, such as the theft of $153 of videotapes — resulting in sentences of 25 years to life.  Then there are the victims of domestic abuse, those who finally snap and kill the men who repeatedly beat them: they get beaten a lot less now that as many as 2,000 of them are serving life sentences.

Let’s not even consider that our “tough on crime” stance has us shutting down mental health facilities, then incarcerating most mentally-ill individuals such that — again going off Watson’s 2004 numbers — one in every five lifers and one in every six “general population” prisoners are mentally ill.

Meanwhile, the conservative Cato Institute reports:

The amount of money that American taxpayers spend on prisons has never been greater, and the fraction of the American population held in prison has tripled during the last 15 years, as has national prison capacity. Yet the expected punishment of violent criminals has declined, and violent crime flourishes at intolerably high levels. The seeming paradox of more prisons and less punishment for violent criminals, which means less public safety, is explained by the war on drugs. That war has gravely undermined the ability of America’s penal institutions to protect the public. As prisons are filled beyond capacity with nonviolent “drug criminals” (many of them first offenders), violent repeat offenders are pushed out the prison doors early, or never imprisoned in the first place.⁵

Alright.  Alright.  Let me stop beating the dead horse.  We have large numbers of innocent people in our prisons.  I blame our society’s increasing tendency to favor “victim’s rights” over the necessary goal of our justice system — the determination of whether an accused person is guilty, or not guilty.  But I’ll set that observation aside for another day.

We have innocent people in prison.  What shall we do if and when we find them?

Well, it depends.

According to the 9th Circuit Court of Appeals, if we find them in time — that is, before the artificial boundary created by Congress in 1996, which undid a couple hundred years (at least) of precedent — maybe they can go free.

But if they missed the boundary?  If — although they are actually innocent of the crime for which they were convicted – they are unable to prove their innocence until after the time limit for an appeal or writ has passed?

Well, fuck ‘em. Let ‘em rot in prison.

At least, that’s what the 9th Circuit Court of Appeal — allegedly the most liberal of circuits in the United States — has to say.

And that, my friend, is nothing short of criminal.

1. The prisons system includes people in prison, jail, probation and parole.
2. Sheldon Archer, “There are Thousands of Innocent People in American Prisons” (29 June 2010) ArticleBlast, available at http://www.articleblast.com/Laws_and_Legal/Criminal_Law/There_are_Thousands_of_Innocent_People_in_American_Prisons/.
3. Roger Roots, “How Often Does The Criminal Justice System Get It Wrong?” (February 5, 2001) available at http://www.caught.net/innoc.htm.
4. Debra Watson, “Huge rise in prisoners serving life sentence in the US” (26 May 2004) International Committee of the Fourth International.
5. David B. Kopel, “Prison Blues: How America’s Foolish Sentencing Policies Endanger Public Safety” (May 17, 1994) Cato Institute.

From what I’ve seen, while prisons are better than jails, prisons suck.

Some people think prisons should suck.  That may be true, although I’m going to argue in a couple minutes here that they should not.  Even so, most prisons suck more than any reasonable person — that is, if they truly are reasonable — would agree that they “should.”

Now, whenever I write a post like this, I always have to start off somewhere near the top — like here — vainly trying to explain to borderline readers what I’m not saying.  In this post, for example, the sociopaths who have somehow managed to stay on the “right” side of the law — or at least to have managed not to get caught — will be gnashing their teeth at my statement that prisons “should not” suck.

I know that while I’m going to spend a minute here trying to clarify this, these people are still going to see me as some kind of bleeding-heart liberal who apparently thinks prisons should be super-sized country clubs complete with coddling, full-body massages, movie night (with popcorn!) and the like.

All I can do is assure you that I do not think that and try to assure anyone who actually thinks I’m a liberal that they just don’t know me.  Compared to large populations of Americans, I’m probably most closely aligned with liberals, although I personally think that can only be said because people who argue for limited government — the kind that can’t get into everyone’s business — are considered liberals by those who stop reading or hearing the announcement of the more-accurate label after the first two syllables.

Conservatives, of course, want greater governmental involvement in the lives of the citizenry.  As far as conservatives are concerned, governments should tell you who you can love, who you can marry, whether you can (or must) have children, how you can raise those children, what kinds of things you can read, see, or buy, with whom you can hang out, and so on.  Oh, and they believe that government should also pick one official god and stick with “him” and the official “he” the government picks must be “their” god and not someone else’s.  Anyone else belongs in Guantanamo, or in some super-duper-max prison.  Which is worse than a regular prison and reserved primarily for Muslims who escaped being sent to Guantanamo by virtue of being American citizens and not having engaged in any terrorist acts.

That we know of.

This description of conservatives is especially true of the ultra-right-wing Christian conservatives, who can’t even follow their own god’s admonition about being a light to the world and who insist instead on being the enforcers of the ancient laws explicated in the Tanakh.  Incidentally, these Pharisees don’t call it “Tanakh”; that’s for us god-damned liberal Jews.  To the right-wingers, it’s the “Old Testament.”

On the other hand, I have to be fair and indicate that I’m not really a “true” libertarian, either, because I do think some government regulation is necessary, even of corporations like British Petroleum (BP), as I argued on one of my personal blogs the other day.

Still, the smaller the government, the better.  It only needs to be large enough to protect us from being physically harmed by others, like rapists (which includes BP), murderers (which includes BP), thieves and destroyers of property (which includes BP) and similar types (almost all of which will probably include BP).

But I digress.  It was a necessary digression because I had to make sure to distinguish that I am not a bleeding heart liberal who thinks prisons should be cushy country clubs.

As I said, though, neither should prisons suck.  They especially should not suck unnecessarily.

Prisons should not suck for the simple reason that the prisoners held there are not all in it for life.  At least, not yet:  We still have quite a few laws on the books for which a life sentence has not yet been deemed appropriate.  Thus, sometimes sooner, sometimes later, many of those prisoners will be released back into society.

It is de rigeur these days to believe that recidivism is inevitable.  Criminals are immutable; they cannot change their evil ways.  I’m not sure how it is that conservatives believe that good people like — oh, pick just about any minister who turned out to be a seducer of young boys, or girls, or who took huge amounts of cash and spent it profligately on his own desires — how they think these people can change from good to evil and back to good again, but other people in our prisons can’t.

In any event, they’re wrong.  People can change.  They do change.  Furthermore, some people in prisons are there for committing crimes that they will never, ever repeat in their lives again, no matter what.  Some people make stupid mistakes in their lives and then — unless we help them — come to define themselves by their mistakes eternally (just like those who condemn them) and they become habitual life-long lawbreakers.  Without enough self-respect to recognize that a mistake doesn’t have to mark them for life, they will return to society, but cannot be reintegrated.  They will hurt, or steal, or otherwise transgress our laws, again.

And many of them will take that path because our prisons suck.

Prisons dehumanize people.  They start off being treated as animals by virtue of being locked up.  That aspect of it is unavoidable; it’s a consequence of the fact that we justifiably cannot tolerate the presence of people who will do what they’ve done and we must both remove them from our midst and punish them.

But we must also rehabilitate them.  Because, as I said, a large number of them will return to us.  We will benefit best if we can reintegrate them into our society, rather than encourage them to commit another crime, after which we will lock them up again. (If we don’t run out of space and money.)

The simple fact is that while our prisons suck, we cannot hope to accomplish this.  Prisons not only treat people like animals through locking them up, which I’ve already said is necessary and legitimate; they also treat them like animals in myriad other ways.  Guards abuse prisoners.  Routinely.  They mock them.  They steal from them.  They hassle them unnecessarily.  Sometimes they beat them, which is not part of any legitimate punishment sanctioned by our courts.

In addition, many of the procedures in prisons are excessively draconian and followed to the letter with an eye to inflicting the most pain.  Conversely, some of the procedures are arbitrary in their enforcement, or contain “loopholes” that allow guards to further abuse the prisoners, such as when a guard “pockets,” “trashes,” or otherwise “misplaces” what we in California refer to as a “602″: a complaint that should be processed through the informal administrative appellate process, before moving on to a formal administrative process and, potentially, to be the subject of a writ in a court of law.

And that doesn’t even get into the harmful things prisoners are allowed to do to one another.

None of this is conducive to rehabilitation.  Quite the contrary, it encourages exactly what we don’t want: a lack of trust in the idea that societal norms and rules have value and are worthy of a prisoner’s attention.   This is why, currently, prisons function more as schools, teaching those who have done badly how to do worse, or as factories, cranking out better criminals.

The safe enjoyment of the world in which we live requires that we lock up criminals.  But the safe enjoyment of the world in which we live also requires that we help prisoners to reform.

Unless and until the sociopaths who sanction, build and run the systems can be reformed, unless and until we as a society can let go of our belief that prison should suck, the reformation of prisoners is impossible.  We will only “harden” those we send there.

Making our prisons suck is inconsistent with our rehabilitative goals and inconsistent with American values.

We need to rethink not just our approach to crime (which I’ve often argued elsewhere), but our approach to imprisonment.  Yes, our goal should include the temporary or even permanent removal of people who have committed crimes from our midst.  But in reality, that is a sub-goal.

Our real goal — the only way to make us safer — has to be rehabilitation.

The direction we’re currently moving — making every crime subject to life in prison — is an unsustainable goal.

It is also inhuman.

Corcoran is apparently a small, scared, little hick town full of frightened citizens.  I came to this conclusion because of the little man who sat near the front of the courtroom, next to his court-appointed attorney who was, with loud, booming voice, questioning a woman who looked like a deer caught in the headlights.  I realized later she held this look because, like so many officers of the state – she was apparently a guard at the local prison – she was trying to make sure the answers she gave to the defense attorney’s probing questions did not help his client, or hurt (what turned out to be) her case.

The man sitting next to the defense attorney was himself somewhat diminutive, hunched over a little in the manner of those who are attempting to keep their shackles from hurting where the wrists are unnaturally bound to the waist.  Immediately behind him – so close that I wasn’t sure if one of the officers was just a naturally happy guy, or if his crotch was rubbing the shoulder of the prisoner – stood two guards, each of which was clearly larger and more heavily armed than the prisoner.

And, of course, unshackled.

Fortunately, the defense attorney was oblivious to the existence of his client.  Any attempt to confer with him with any confidentiality would have been impossible given the proximity of the guards.

Approximately ten feet from these two, another armed deputy rested against a podium.

Meanwhile, on the other side of the courtroom (which is to say, in this tiny place, possibly twenty feet – thirty at most – from where the prisoner sat) and situated somewhat between the judge and the shackled prisoner, stood another guard.

“Wow!  That’s a lot of security!,” I thought.  So overdone was it as to be humorous and I considered snapping a photo on my iPhone and uploading it to Twitter.

That is, until I noticed another deputy near the back of the courtroom, off to my left.

As the questioning progressed, it became readily apparent why so much security was needed.  The poor woman testifying was explaining how she was merely trying to do her job running surprise security checks at the prison when she peered through the window to the small man’s cell and discovered him sitting on his bunk, masturbating.

Apparently, if you take a man and lock him up, away from women, he will try to find some other way to gratify his natural urges.

All of this would seem to have little to do with California’s budgetary crisis.  Five armed deputies, any one of whom probably makes more money than me, guarding a small courtroom in an obviously frightened-to-death little hick town in the middle of nowhere?  That’s just necessary security.  Having a prosecutor charge a prisoner with a new crime for masturbating in his cell (why? will his new sentence run after his current sentence? [no]) doesn’t cost anything, either.  The county’s contract defender?  Minimal cost.  Hardly worth worrying about.

But if this is the level of security needed to protect us against one tiny man whose hands, when not cuffed, are obviously busy at other things, it’s no wonder Sheriff Margaret Mims in Fresno feels the need to shut down half the jail due to budget cuts.  It’s no wonder California’s education budget needs to be cut.  Who can argue that we need to fund treatment and redirection programs for youthful offenders?  And food stamps to keep poor people from starving to death?  Give me a break.

After hearing this story, can you imagine how many officers it takes to watch a couple hundred horny inmates?

Obviously, we’re going to have to cut a few more social programs.

There are actually two answers to that, the most simplistic of which is “no.”  Although, in a way, this blog is unavoidably political: the legal system is, at bottom, the reification of the politics of a given jurisdiction — or to be more honest about it, it is the reification of the politics of those who have the power over the legal system, such that they can reify their political views in a concrete system of law.  But I really want to save that discussion for another post.  At any rate, it must be admitted that, on the one hand, this blog has always been political.

On the other hand, this blog does focus on the legal system; it is my “professional” blog and I am an attorney.  We don’t typically think of discussions of the law as being political discussions, per se.  This post will maintain a focus on the legal system; not health care.  In that sense, then, this post is not a sign that the blog is “going political.”

The most I will say about Obama’s health care plan is that I’m not a socialist.  But, again, that particular issue is for discussion for another post and, with respect to Obama and/or political footballs like health care plans, for another blog.

I have, nonetheless, with some interest been following the circus atmosphere surrounding these so-called “town hall meetings,” reported with apparent glee by the few mainstream press sources I still occasionally read.

On the day I started writing this article, an attendee at one such circus summed up why I find the stories interesting.  In defending the rowdy, boorish and — let’s call it what it is — anti-democratic behavior of a few people in the crowd, he stated:

I don’t think we have bad attitudes.  We’re just being Americans.  (CNNPolitics.com, “Specter faces hostile audience at health care forum” (August 11, 2009).)

He’s right.  Which is no small part of why America is in the middle of breakdowns at so many levels.  And that brings us back to the non-political, or (if you prefer) the reified political realm.

America has become a binary nation.  Maybe it’s the fact that we were one of the first and arguably most technologically-advanced nations moving into the Information Age.  We might not have been the first nation to have stored-program universal computers, but we certainly were one of the first.  And probably no other country has seen as pervasive a spread of computer technology throughout the general population as the United States.

Whether the computer has had anything to do with it or not — and I hate to sound like a broken record, but that is a discussion for another blog article on a different kind of blog — the point remains that in the last several decades, Americans have proven themselves less and less capable of anything other than binary thinking.

The “binary” in “binary thinking,” of course, means we think in terms of “yes/no,” “on/off,” “either/or.”  We no longer see a rich tapestry of choices; our problems are no longer complex (or so we mistakenly believe); and if you are not for me, or in total agreement with me, then you are obviously my enemy.  My sworn enemy.  My opinions are water: necessary for life.  Your opinions are oil: perhaps providing a lot of energy as I burn through the reasons why you’re wrong, but ultimately good for nothing but polluting the earth.

As everyone knows, oil and water don’t mix.  And binary thinking, while great for computers, isn’t so hot when it comes to dealing with complex societal problems.

There are two problems with binary thinking. The first is simple reality: far more of the universe is made up of things that are continuous in nature, with no neat distinctions and many intermediate values between any two points, than is made up things with discrete, binary characteristics. Magnetic and electrical fields may be inherently bipolar, but both types of field have an infinite range of magnitudes. The portion of the electromagnetic spectrum we can see (visible light) is a great example of how this works: the classic cartoon rainbow has only seven colors (red, orange, yellow, green, blue, indigo, and violet, with neat binary divisions between any two adjacent colors), but a closer look reveals an infinite range of intermediate shades. Truth itself is very similar, with most of life’s “truths” coming in a bewildering shades of grey rather than simple black and white. The second and more serious problem is that, as the debates over sentience and taxonomy demonstrate, binary thinking divides the universe into us and them, opposing camps who can only agree on the need to fight until one camp declares victory. Lost amidst the melee is the potential gain that comes from understanding the value of both sides in the debate and using each side’s tools whenever they’re most effective.  (Geoff Hart, “Editorial: Binary thinking” (September 2005) The Exchange, Issue 12(3). [The Exchange is a newsletter of the Society for Technical Communication.])

“Okay, Rick,” you say.  “But what the hell does this have to do with the law?!”  (The exclamation point is for you, Brian!)  “And why do you refer to this as contributing to ‘breakdowns at so many levels’?”

For starters, binary thinking has had a serious effect on criminal procedure and punishment within our legal system.  If an individual is a “criminal,” prosecutors and the general public bemoan any attempts by defense attorneys (and the rare judge) who acts as if the individual has certain constitutional rights.  (The right not to be convicted without a trial, for example.)  The goal is the opposite of what the Constitution intended; the goal is easy conviction of those accused of committing crimes by lowering the evidentiary and other requirements and by making it more difficult for them to defend themselves.

Beyond that, binary thinking fuels a “tough on crime” stance with disastrous results to not only our legal system, but to the financial health of our State.  The penalties for even the mildest of crimes have been climbing.  This has a significant impact on things like prison population.  A 2006 report, for example, noted that the prison population had increased by 73 percent in just 15 years.

California State Senator George Runner (R-Antelope Valley) begs to differ. According to him,

The fundamental reason that critics of tough criminal penalties cannot come to grips with the facts is their unshakeable belief that longer sentences inevitably increase prison population.  Experience tells us otherwise.  (“Who Is In Our State Prisons?” available here.)

I’m not sure what State this California Senator actually lives in, but our experience does not tell us otherwise.  When you look at the problems facing California prison operations, one of the components is “the graying of the nation’s prisons.”

While crime remains overwhelmingly a young man’s game, between 1992 and 2001, the number of state and federal inmates aged 50 or older rose from 41,586 to 113,358, a staggering jump of 173 percent, a 2004 National Institute of Corrections report found.  (“One in 100: Behind Bars in America 2008″ (February 2008) The Pew Center on the States, from the Pew Charitable Trusts, available here.)

Despite this, new prisoners continue to come in behind these old-timers faster than the old-timers die or are discharged from the prisons.  It doesn’t take a brain surgeon to figure this out: simple logic indicates that if people stay in prison longer and more people continue to come in behind them, this will naturally result in more people in prison at the same time.

There’s an old phrase about “lies, damned lies, and statistics.” And “Who Is In Our State Prisons?” makes good use of the ability of statistics to mislead readers.  If you throw enough numbers out there, you can bamboozle just about anyone.  For example, “Who Is In Our State Prisons?” trumpets the idea that “California’s total inmate population has grown an average of less than 1% per year” and argues that this is because so “few criminal offenders are sent to state prison for a first, second, or even third felony unless they have committed murder, rape, or robbery with a firearm.”

Moreoever, for every 100 serious felonies reported in California there are approximately 40 adult arrests but only five offenders sentenced to state prison. (“Who Is In Our Prisons?,” supra.)

This sounds great!  Less than 1% growth per year!  And — dammit! — we’re hardly locking up anyone compared to the number of serious felonies being committed.  We should actually be locking up more!

But let’s scratch the surface of this a moment.  For example, what is a “serious felony”?  Well, if my morning calendar today is any indication, it includes things like throwing a stick at someone.  It includes a kid being angry at a deputy in the jail because he thinks the deputy is laughing at him, so the kid says, “If I see you on the outs[ide], it’s your ass.”  Like the kid had any potential for actually following through.  It was what most people would think of as “an empty threat.”  The kid was posturing.  However, these two incidents resulted in multiple charges against each kid which would be classified as “serious felonies.”

And that one percent number?  That may be true.  (Disclaimer: I do not know that it is.)  But consider this:

In California, the state prison inmate population grew from 24,569 in 1980 to 135,646 in 1995, which is an increase of about 452 percent. (United States General Accounting Office Letter Report, “Federal and State Prisons: Inmate Populations, Costs, and Projection Models (Letter Report, 11/25/96, GAO/GGD-97-15)” available here.)

And,

During this period, the incarceration rate in California increased 312 percent, growing from 104 inmates for every 100,000 residents in 1980 to 428 inmates for every 100,000 residents in 1995.  (United States General Accounting Office Letter Report, supra.)

Then there’s Governor Schwarzeneggar’s statement reported August 19, 2009, that prison spending has doubled — so that’s a 100% growth rate in spending on prisons — in the last five years.  It seems more and more clear that

[C]urrent prison growth is not driven primarily by a parallel increase in crime, or a corresponding surge in the population at large.  Rather, it flows principally from a wave of policy choices that are sending more lawbreakers to prison and, through popular “three-strikes” measures and other sentencing enhancements, keeping them there longer.  (“One in 100: Behind Bars in America 2008,” supra, emphasis added.)

This “get tough” policy on crime has, ironically, created a feedback loop.  Due to the large sums of money spent on locking people up, we don’t have any money left for rehabilitation.  So people we lock up eventually get out.  Since they haven’t been rehabilitated, they commit new crimes.  This not only requires us to lock them up again, but causes more of us to believe that letting people out of prison after they’ve committed crimes only leads to more crime.  So we need to get tougher on crime.  Put them away longer.  Don’t let them out.  Lock ‘em up and throw away the key!

But the combat Marine in Vietnam, attorney, senior defense department official, Emmy-award winning journalist, film-maker, and the author of nine books, senior Senator-from-Virginia Jim Webb, who has maintained a life-long commitment toward protecting America’s national security interests while also keeping his eyes on social justice stated it quite well:

“There are only two possibilities here,” Mr. Webb said in introducing [a congressional bill to create a national comission to investigate criminal justice issues], [and] noting that America imprisons so many more people than other countries.  “Either we have the most evil people on earth living in the United States, or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice.”  (Nicholas D. Kristof, “Priority Test: Health Care or Prisons?” (August 19, 2009) New York Times.)

I’d bet on the latter.  Our high rate of recidivistic crime, for example, is due primarily to a combination of two factors.  First, there seems to be a generally-held belief that “once a criminal always a criminal.”  So there really is no solution: once someone has been identified as a criminal, you just have to lock ‘em up and throw away the key.  And we teach this belief to people who commit crimes, so it becomes a kind of self-fulfilling prophecy.  The second (related) problem is that we don’t fund rehabilitation anymore.  So people who commit crimes seldom can be integrated back into society as law-abiding citizens.

Instead of seeing individuals as they really are — complex, capable of change and sometimes making criminal “mistakes” — and thus existing as people capable of multiple degrees of “criminality” and amenable to rehabilitation, we can only see two options.  You’re either a criminal, or you’re not.  It’s binary thinking at it’s best (or worst).

In short, we’re just being Americans, incapable of complex mental operations and thus incapable of dealing with complex problems.

Why so much?

The reason can pretty much be summed up by California Attorney General Jerry Brown’s quote in the Chronicle story.  Brown said the court “does not recognize the imperatives of public safety.”  (San Francisco Chronicle (February 10, 2009) p. A16, col. 2.)

Maybe Brown is just practicing his debating skills and making a stab at doing the job of showing the California public that he can be “tough on crime.”  The statement is otherwise fairly idiotic.  If anyone has shown a lack of recognition of the “imperatives of public safety,” it’s California and its citizens.

Public safety, among other things, means that we have safe roads on which to drive, safe schools where our children actually learn things and a robust system that protects and improves the health of our citizens.  We pretty much have none of these things because California is verging on bankruptcy.

Ironically, the reason California is verging on bankruptcy is connected with our prisons problem.  California’s “get-tough” stance on crime has increased our prison population by 82 percent over the last 20 years.  During the same time, the state’s population has increased by only about 50 percent. Thanks to “Three Strikes,” California’s legislature simply can’t get a budget past home plate.

So, as I said, the basis of our problem is pretty much summed up with Brown’s quote: Californians’ obsessive zero tolerance, lock-’em-up-and-throw-away-the-key mentality, rather than actually considering whether a parolee who comes home 15 minutes after curfew requires another 8 months in prison, or whether someone who steals a few videotapes or three golf clubs should be put away for life, makes it impossible for us to determine what is necessary to ensure public safety.

Worse yet, it makes us unable to afford public safety.

It makes others wonder: “Are Americans completely devoid of any kind of common sense?”  Or “are Americans just mean and stupid?”

I have a memory from high school of a friend who engaged in what today would be considered an act of felony vandalism. It may have been then, too, but in those days we understood that sometimes kids did destructive things, because, by definition, they’re immature. We didn’t saddle them with felonies because of it. But I digress (as I am unfortunately wont to do). He was a great guy.

These days, I ostensibly make my living as a criminal defense lawyer in Fresno, California. As you might imagine, I rub elbows with a number of deputy district attorneys. Not infrequently, I’m mystified by their attitudes towards people accused of crimes where there is little (or even no) evidence beyond innuendo and supposition to support the charge. These DDAs forge full steam ahead towards a conviction, sometimes stretching the law — in some cases even breaking the law — in order to obtain a conviction. The majority of them are pretty nice people.

There’s a common thread here.

How Bad Things Get Done by Good People

In the case of the woman above, friends who knew us asked, after the eight-year relationship ended, how I could stay with “such a horrible person” so long and why I didn’t leave sooner.  The answer is that she wasn’t a horrible person.  As I explained to my friends, it wasn’t her: it was the dynamic of our relationship.  Over time — who really knows why? — she developed a habit of feeling and acting a certain way towards me.  You might think I did something to earn this, that I deserved it, but I’m pretty sure I did not.  I was a pretty great guy myself, or so people who knew me said.

My high school friend committed the act of vandalism while with a group of others — some of them may have been great guys, too, but I didn’t know them enough to say — and later was ashamed of his own behavior.

You may not think the deputy district attorneys fit what I’m describing here. And if I were only talking about the temporary insanity that goes along with group-think, I’d probably agree.  Yet the attitudes and opinions of the DDAs are reinforced by the offices in which they work and the people with whom they spend a lot of time.

Theirs is an institutionalized and fossilized group-think; backed by policy.  (Their actions and attitudes are also informed by other phenomena: oversimplification and hasty generalization.  That, however, is a topic for another article.)  As with other examples of group-think, what happens depends on the specific characteristics of the group.  There is no doubt that the mileau of the Fresno District Attorney’s office differs quite a bit from that of the Dallas County District Attorney’s.¹

And as Judge Katherine Lucero, a supervising judge of the Santa Clara County Juvenile Dependency Court can tell you, who is in charge can make a big difference in the approach a particular group of prosecuting attorneys take towards the public they purportedly serve.

Treating Clients & DDAs as Individuals

My constant fight with individual members of the DA’s office is to remind them that each of my clients are unique, that each of my clients is an individual.  Institutionalized group-think makes that a challenge.

The job of a DDA is not to obtain convictions, but to seek justice.²  While the law attempts to ensure some predictability and evenhandedness to the dispensation of justice, the fact is that real justice requires an individual assessment of each offender.  It’s in vogue these days to treat all accused persons as criminals equally worthy of disdain, contempt and a lack of respect for them as human beings and to keep that attitude in mind when deciding whether or not to plea bargain.  Part of my job is to counteract this tendency.

Ironically, the reason this doesn’t always work is because the DA’s office doesn’t just fail to treat accused persons as individuals: it fails to treat its own DDAs as individuals. If the stories some DDAs tell are true, many of them are not allowed to do what their own investigation and understanding of the case tells them they should do. They’re not allowed to act upon the case “in the interest of justice.” Whether the case should have been filed, or not — and in more than a few cases, it flat out should not have been filed at all — it’s the conviction rate that counts. In the California Rules of Court, Rule 4.112(a) actually requires that,

1. All trial counsel must appear and be prepared to discuss the case and determine whether the case can be disposed of without trial;
2. The prosecuting attorney must have authority to dispose of the case….

Yet Fresno County District Attorney Elizabeth Egan appears incapable of recognizing that appropriate dismissals or “deals” demonstrate that her office makes sound evaluations and realizes that some cases, in the interest of justice, should be dismissed. Instead, she appears to believe that dismissing or making a more fair disposition under the individual circumstances is tantamount to being “soft on crime.”^3,4

The Detrimental Effect of Group-Think on Justice

From conversations with DDAs, I think this reticence about allowing prosecuting DDAs to plea bargain comes from a misplaced assumption that proper consideration was given to the case prior to filing the charges. Yet prior to the involvement of a defense attorney, the DA’s office, supplied with the one side of the story presented by law enforcement and any alleged victims, may not have had all the information to make an appropriate judgment. That, after all, is why our system presumes people to be innocent until proven guilty. And it is why our Constitution and sometimes our courts require the prosecution’s case to “survive the crucible of meaningful adversarial testing.”⁵

It is not uncommon to try to settle a case with a DDA who cannot make the determination as to a possible disposition without first taking it back to their supervisor.  Not only does this result in a delay in the disposition of the case (and, incidentally, increased cost to public and private resources not limited to potentially unnecessarily prolonged contribution by the client to jail overcrowding), it is contrary to the rules of court.  It sometimes results in rejection of a defense offer of settlement by someone who might not have the necessary input from defense counsel that could cause the supervising DA to recognize the defense offer has merit.

Institutionalized Group-Think Hurts Everyone, Not Just Those Accused of Committing Crimes

The institutionalization of group-think has a significant negative impact on our justice system.  First, the District Attorney’s office is afraid to do its job as required by Justice and the Constitution because of public attitudes which do not differentiate among individual crimes or criminals.  This societal group-think leads to the District Attorney’s fear of appearing soft on crime if they treat accused persons as individuals and take into account information supplied by the defense to arrive at a more fair disposition. This societal failure to discriminate — shared by some DAs and DDAs — combines with a policy that ignores the California Rules of Court by denying individual DDAs to negotiate settlements on an individualized basis.

In the end, we all lose. Not only is justice delayed justice denied, but “justice” applied without recognition of individual differences amongst accused persons can result in longer incarceration periods than necessary in many circumstances. The increased burden on already-overpopulated jails and prisons impairs our ability to fund other needed services, while simultaneously inviting the federal government to put California prisons into receivership.

It would help if District Attorney Elizabeth Egan and other higher-level supervisors within her department would remember their duty to justice, rather than being concerned about special interest groups who might make a fuss at election time.

Ms. Egan’s job is not to obtain convictions, but to seek justice. (People v. Fuller (1982) 136 Cal.App.3d 403, 424 [186 Cal.Rptr. 283]["prosecutor represents the state and has a high duty, actually and in appearance, to seek justice, not merely convictions"].)

1. With respect to Egan’s excuses, the real reason Fresno’s conviction rate is so low has less to do with money than with the fact that the department overcharges those who do commit crimes and wastes resources by charging people who should not be charged at all. The prevailing theory is that to maintain her “tough on crime” image, Egan prefers to charge even weak and unlikely cases. “Let the jury sort it out,” she says. She gets to look tough, but what about the innocent people who, unable to make bail, sit in jail until their case meanders its way through the court to the jury? As for the “more money” issue, in Summer 2007, she added 15 prosecutors to her office; the Public Defender added about two-thirds as many attorneys. If this page and this page — both maintained by the County of Fresno — are correct, there are now more than 300 people in the DA’s office and 132 work for the Public Defender in Fresno County.
2. People v. Fuller (1982) 136 Cal.App.3d 403, 424 [186 Cal.Rptr. 283]["prosecutor represents the state and has a high duty, actually and in appearance, to seek justice, not merely convictions"].
3. And yes, I speak of the evil “plea bargain” without which our system would collapse from its own weight.
4. In fairness to Ms. Egan, this attitude is not limited to her office and is actually driven by a more widespread societal group-think. On the other hand, that’s why we have people whose job it is to know certain things and act upon that knowledge; because uninformed mob rule is a bad thing.
5. People v. Dunkle (2005) 36 Cal. 4th 861, 930 [32 Cal.Rptr.3d 23].

The worst thing you can have is power and lack of knowledge. — psychologist Habsi Kaba.

Last Friday, I was privileged to attend the (Juvenile) Behavioral Health Court Quarterly Meeting in my county.  I was a little surprised to learn that I was the only private practice criminal defense lawyer to take advantage of this opportunity, but that’s a story for another blog article, another time.  Believing this to be a better alternative for some of my juvenile clients than repeated episodes of pointless incarceration which merely exacerbates their conditions, I wanted to learn more about how the behavioral court worked.

One of the first, saddest, and most difficult things I learned of concerns the struggle the Behavioral Health Court has just to survive.

The United States, but California in particular, has a penchant for punishment — no matter the costs.  Yet we recoil from rehabilitation, despite the savings, because “it costs too much.”

“I don’t care.  Lock ‘em up and throw away the key,” say many of my friends.  I was quite disturbed recently to learn that even one of my friends in the Public Defender’s office feels this way.

And it’s difficult to find an appropriate response, because (so far) none of the people I’ve run into who hold these views base their opinions on anything connected with the real world, or even logic.  The attitudes are emotionally driven, or based upon unexamined assumptions.

This is particularly troubling when it comes to juveniles — children — who come into contact with law enforcement.  As the most recent data shows, that amounts to around 80,000 children per day. According to that same article, as many as 80 percent — eighty-percent! — of these children suffer from a recognizable mental health disorder, while others estimate the number anywhere between 65 to 70 percent with diagnosable disorders.  Twenty-five percent have disorders so severe as to impact their ability to function.

No matter how you slice it, that’s a lot of kids.

In most cases, because their mental illnesses are going undiagnosed, we’re essentially trying to get these kids to do what is physiologically impossible, and then punishing them when they fail to comply.  No small part of the problem is that many who should be helping these kids don’t understand the problem; they don’t see juvenile offender behavior as a mental health problem.

This is true, though, even for children who are not diagnosed with actual mental health issues.

“There’s been so much neurological research and outcome research into juveniles in the last 20 years that shows how powerful rehabilitation can be for a young person whose brain is still developing,” said Carol Chodroff, advocacy director of Human Rights Watch’s U.S. program in Washington, D.C. “People are starting to realize that it works, that it saves money and kids, and that’s why this bill is so important.” (Editorial, “Rehabilitating juvenile justice” (July 14, 2008) San Francisco Chronicle (online).)

The bottom line on that we need to remember the old cliche: “Our children are our future.”  All children. The costs of programs — like some kind of a “behavioral” court — to rehabilitate them, whether they are actually mentally ill or not, is significantly less than what we will spend otherwise, both monetarily and in terms of human suffering.

At least until she’s caught again!

You can almost hear the two at the door: “Wait!  What about us?!”

News reporters interviewing black students express surprise that the students believe there is racism in America. After stating that blacks have more rights than ever before — “they don’t have to sit in the back of the bus; they get to go to school” — the interviewer can’t believe what he’s being told. “You believe…today? 2008? The United States of America is a racist country?”

The report goes on to explain that blacks don’t base their beliefs on “personal experience,” but on news stories. In other words, the story implies, even though the black students who were interviewed haven’t experienced racism, they believe that America is a racist country. The report implies that this is just wrong; it implies the most black people do not experience racism. There’s even another interview with a black man stating that this is “just an excuse.” (I’m fairly sure the short clip is taken out of context.)

What these white (at least on the inside) interviewers need to do is some research.

According to the Bureau of Justice of Statistics, by the end of 2005 there were 3,145 black male prison inmates per 100,000 in the United States compared to 471 white male inmates per 100,000. (Sandra Williams, “Racial Bias for Black Prisoners” (March 9, 2007) suite101.com.)

This is a sad statistic. Yet even more sadly, “a careful analysis of race and the death penalty in Philadelphia which reveals that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black.” (Richard C. Dieter, Esq., “The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides” (June 1998) Death Penalty Information Center.)

Black Americans are not the only ones to suffer racial prejudice, either. The California Progress Report notes that,

There are also disparities by offense type, with African American and Latino prisoners (52% each) more likely than whites (44%) to be imprisoned for violent offenses. (“Who’s In Prison? The Changing Demographics of Incarceration is our site of the day” (August 10, 2006) California Progress Report.)

And if you want to see evidence of more “everyday-type” racism in America that doesn’t relate to “news stories,” read the comments that have been posted to that last story.

As a criminal defense attorney, I’m used to seeing racism play an important part in the charges against my clients. Sometimes it’s a matter of my client being stopped on the road because he was a Mexican with a bald head — must be a gang member! — and in at least one such case his only “crime” was that he decided he did not want to talk to the officer. Other times, the charges are much more harsh for my “clients of color” than they would be for similarly-situated white clients.

I don’t know. Maybe CNN just meant to say “black folk should be glad we don’t still lynch them.” Whatever they meant their message to be, one need look no farther than the CNN report to see that, yes, America is still a racist country.