I tried, I really did, to write about something other than Hurricane Sandy, the Frankenstorm, the Storm of the Century, that was to drive us to our knees. But after this near miss with yet another apocalypse, I could think of little else. The end was nigh, and we’re still here. Isn’t that worth a giggle or two?
Generally, I avoid media reports about storms. The breathless yammering about all that could go wrong is wearying. Whatever good such crisis-mongering may do for television ratings, it does nothing but distract: try running a law office when your employees are worried about which militia to join when civilization crumbles.
So when I heard Sandy was coming, I sighed. "Here we go again," I thought.
Then I let my guard down. My wife turned on the television as I rode an exercise bike. There it was. Colorful graphics. Breathless descriptions. Preparedness alerts. Advice on what to do, what to expect, and how to survive this the mother of all storms.
Within an hour, I had bought into the drama of the big event: the television coverage was like watching a movie trailer for a melodrama in which I was to play the starring role. Bring on the apocalypse! Like Robinson Crusoe, I was ready to stand alone to face the elements.
We stockpiled enough food and water to usher in a new medieval darkness. I wondered whether it was time to dust off an old Latin text, to prepare a new monastery to preserve learning amid the centuries of darkness to come.
Then the winds came. They howled. They bent the trees in the fields surrounding our home. We heard big things go clunk against the roof. A wall of sliding glass doors on a porch was blown in, the windows shattering. We lost power for several hours, and then sat as the lights flickered all evening. As a precaution, we moved a mattress into the kitchen, and slept in a spot we figured would be well away from any other windows likely to be blown in. Hour by hour we were surviving. It felt good.
All was calm the next morning. We walked down to the road expecting to see downed trees – just a few branches. We expected to see flooding – just a few puddles. The radio reported the a road or two near my office was closed, but I made it into the office just fine. We had power at home, in the office, and I was online and connected to the larger world.
We got lucky out my way. I know the luck was not shared by others. I heard about friends’ homes ruined by flooding, and power outages were everywhere. We live out of the way on a hill. We lose power on sunny days. Why were we so lucky this time? Our good fortune in Sandy had me prepared to vote for CL&P for president. Always a contrarian, I survived the Frankenstorm with hardly a scratch.
The best thing about Sandy is that it shut down political campaigns. For a day or two we were spared the chatter of the politicos crooning for our vote. All those brave individualists on the right carping about how big government kills the American spirit were cowering under their beds, hoping the first responders would arrive in time to supply some fresh diapers. And if that didn’t happen? Why, blame Obama! Leadership is what we need!
I watched the gathering storm on television harboring something like hope for a fresh beginning. Isn’t that what all of our fantasies about the apocalypse come to – sort of like a cultural declaration of bankruptcy, and then, salvaging what’s best, a new start? Blow, winds, howl; wipe clean the slate; drive both parties, and their noisy rhetoric, off the continent. The storm was an occupying force.
All the political noise was drowned out for a couple of blessed days. Thank you, Sandy. And thanks, too, for sparing my family the pain you inflicted on so many others.
Reprinted courtesy of the Connecticut Law Tribune.
Here’s a not-so-modest proposal that will reduce the prison population, improve the performance of the criminal justice system, and yield greater confidence in the administration of what we call, with no apparent sense of irony, "justice." Ready? Eliminate plea bargaining.
If you’re still reading – I could almost hear the "pshaw" of jurists such as New Haven’s Patrick Clifford, who, of course, doesn’t read this column, but yet becomes aware of its contents by a form of judicial osmosis – here’s why plea bargaining is really a form of social cancer.
Jurists like to whinny about the "vanishing trial," yet we are systematically killing trial on the civil side by way of pre-trial motions; on the criminal side, defendants are overcharged, terrified and, often, all but extorted to take a plea. If trial by jury is disappearing, that is because we want to kill it. We do so at the loss of a sense of legitimacy, that odd form of alchemy in which mere power is transformed into a sense of authority.
The overwhelming majority of criminal cases are resolved by way of guilty pleas, whether the defendant is, in fact, guilty or not. The law has erected elaborate charades to make it possible to plead guilty to crimes you never committed. An Alford plea, by way of example, permits a defendant to plead guilty to a crime without admitting he or she committed the crime. Is that justice?
Not long ago, a client of mine read in the newspaper the statutory maximum he faced if convicted of a crime he was charged with, but did not commit. I explained that almost no one gets the statutory maximum. Yet there it was in cold type: He "faced" decades away from his loved ones. He wanted to plead to something, anything, to avoid what he was "facing."
There is no doubt in my mind that had the man gone to trial he would have beaten the case. Indeed, there is little doubt that we would have persuaded a judge to dismiss significant parts of the case at the close of the state’s evidence. The prosecution was a threadbare farce. But defendants in criminal cases lack what is so readily available in civil cases: the ability to conduct some limited discovery and then move for summary judgment. A criminal defendant has to roll the dice at trial, gambling his or her liberty against the sufficiency of the evidence.
Smart prosecutors know this. These same prosecutors also control the decision on what charges to file against a defendant. No judge supervises these charging decisions. Hence, the incentive for prosecutors to overcharge, publish the warrant or indictment, and then let the press scare the wits out of a defendant by reporting on the worst that could possibly happen.
If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict.
Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong.
Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most?
Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst.
The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing.
Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors.
Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.
Reprinted courtesy of the Connecticut Law Tribune.