Michelle Alexander writes in this morning’s New York Times about mass incarceration and plea bargaining. She wonders what would happen if defendants everywhere organized and refused to bargain. That would collapse the criminal justice system, wouldn’t it? Imagine prosecutors having to try all those cases! Might that not force a system that regards violations of the law as a board game designed and intended to sustain a prison-industrial complex rethink the madness of making almost any form of deviance from antiquated norms a crime?
Odds are Ms. Alexander, a law professor, a self-described former civil rights lawyer, a former clerk to Justice Harry Blackmun on the United States Supreme Court, and the author of a fabulous book entitled "The New Jim Crow: Mass Incarceration in the Age of Colorblindness," has never stood next to a man or woman accused of a crime in the well of an actual courtroom.
Plea bargaining is the dirty not-so-secret shame of the criminal justice system. Well over 90 percent of cases are resolved by way of plea bargaining. A defendant agrees to enter a plea to some lesser offense in exchange for eliminating the risk of facing a jury and a greater offense. The parties bargain and negotiate like slave-dealers, bartering back and forth about the value of an allegation and the price of freedom – these values are expressed most often in years of a person’s life. It is a practice reeking of the backroom deal. No public ombudsman monitors the process. By the time a deal makes the "record," the ostensibly transparent process put on display in open court, the negotiations are over. Court is most often mere theater.
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.
An illustration will suffice. Last week, I spent three days picking a jury in a domestic violence case. The state charged my client with a handful of felonies and misdemeanors arising from allegations of a former girlfriend that he had assaulted her. My client contends that he never struck her, but he did push her out of the door of his home when she refused to leave after repeatedly being told the relationship was over. Several weeks after he was arrested, he mistakenly resent an old text message to his former girlfriend one night after he had been out at a bar and had more than a couple of drinks. The state added another felony to the mix, this one violation of the court order imposed when the first set of charges were filed to have no contact with her.
If convicted of these crimes, my client would be a convicted felon, and, as a former police officer, he would most likely go to prison for some period of time. He was determined to go to trial to clear his name; his former girlfriend was just as determined to take the stand to testify against him. Trial is a zero-sum game. An acquittal of all charges would vindicate my client. But a conviction, or a split verdict reached by a jury that decided to split the difference between these warring former lovers, could leave him exposed to prison and marred for life as a felon.
Should my client link arms with the millions of other Americans facing thin criminal cases to force the state to rethink the ease with which it prosecutes folks? I wouldn’t advise it.
My client’s interests are in freedom, reputation and the ability to care for his children: a felony conviction harms those interests. Was there a way in this case to reduce to zero the chance that these interests would be undermined at trial?
We struck a deal with the prosecution. The state will drop all of the domestic violence charges unilaterally. My client will enter what is known as an Alford plea to breach of peace in the second degree, a misdemeanor, for mistakenly sending an email in violation of a court order. Alford pleas permit a defendant to deny committing a crime, but acknowledge that a jury might convict based on the state’s evidence. The "sentence" in this case is a conditional discharge – no prison, no probation, just a commitment to stay away from a woman he no longer cares to see. There will be no trial. This is a good outcome, even if it is not really a "win."
Was this result "just"? I have no idea. Did it serve the client’s interests? I believe it did. Was the outcome far from satisfying to all involved? Absolutely. My client did not get vindication; his former girlfriend no doubt feels cheated as well. Such are the dark rhythms of the criminal law.
There is plenty that is wrong with the criminal justice system. Prosecutors have too much discretion to pile on all sorts of charges in an effort to scare a defendant into a plea. Judges have too little power to trim the sails of a prosecutor out of control. We keep the truth from jurors far too often about what happens to a man or woman convicted of a crime. And prison is used as a means of warehousing the deviant, different and ill. The United States, the land of the free, has five percent of the world’s population, but 25 percent all of the world’s prisoners. Call me a sentimental fool, but is this not a sign of "injustice"?
The criminal justice system is really no better than the society it reflects. There is a crisis in legitimacy in this country. When the stock market his 13,000 the other day, bankers rejoiced. But the millions unemployed did not. Increasingly, ordinary people have checked out of a system that promises far more than it delivers. Plea bargaining is neither the cause of these problems, nor is it a solution to any problem other than the very real fear a person has that they stand to lose everything when the juggernaut we call the state comes barreling down on them like a runaway train.
Good criminal defense lawyers work to create options for clients in crisis. Plea bargaining is the dark work of the possible, done outside public view, with aims other than justice in mind. The suggestion that individual clients commit what will amount to individual and collective suicide to crash the system is a dangerous pipe dream. No decent criminal defense lawyer will entertain the thought. I am surprised Ms. Alexander did so.
Lawyers who tell war stories are tedious bores. I mean, we all have stories to tell, right? What makes your story so special that I should stop what I am doing to listen to it? Yet we can’t help telling these tales. The truth of the matter is, a lawyer lives a privileged sort of life. We get front-row seats at the theater called chaos.
So let me relay a story, sanitized somewhat to protect the names of folks who might not like being memorialized in this manner.
I do not often take cases out of state. Although Connecticut is a small place, there is generally enough work to keep my firm busy and our various creditors paid, without crossing state lines. But I hear the call of the wild from time to time. When that happens, I hop a train or plane.
The other day I was in a big city, one of those ornery places whose population exceeds that of the entire state of Connecticut. The case involved allegations of some species of fraud. The Government was determined to bring the defendants to justice.
As I was leaving court, the young lawyer who had referred the case to me sent me a text message. It was urgent, the message said. I sighed. Everything is urgent to lawyers of a certain age. It takes years to knock the urgency out of a lawyer. I’ve done my time on the panic line.
We agreed to meet near the courthouse.
The young man was ashen. The FBI agent assigned to the case kept looking at him after the morning’s hearing. The agent approached the young man and made small talk about things the young lawyer cared about. It was unnerving.
“How old was the agent?,” I asked.
“About my age,” he replied.
“He probably just wanted to talk to someone under 40,” I replied. Most of the lawyers in the care are, well, long in the tooth.
The young man went on to tell me that he thought he heard a funny click on his telephone the other day. Was his phone bugged? I told him I doubted it. Much though I am suspicious of the Justice Department, it is reluctant to target lawyers.
But we were in a big city, the sort of place where lawyers feed on one another in the name of ambition. Still, I was beginning to wonder whether my young friend was just a tad unhinged.
When he told me he had seen telephone company trucks parked outside his home and office for the past several days, I tamped down a growing sense of desperation. This is my co-counsel, after all, in the forthcoming trial. How was I going to cross-examine witnesses if this fellow kept pointing out ghosts?
“You want to put this to rest once and for all?”
“What do you mean?,” he replied.
“You think the feds are tracking you. You want to find out if they are?”
“Yeah, I guess,” he said. He looked uncertain, even scared. Just how crazy was I?, his look seemed to inquire.
“Call me on your cell phone,” I told him.
He walked a few paces away to another park bench.
“Hello,” I answered. “My name is Norm Pattis. This is a legal call. If you are listening, we know it. Call me if you would like to discuss this.” I left my cell number.
We parted company, with me telling the young man that if there were some sort of surveillance it would surely end now, and the feds would make contact soon. At least that seemed reasonable to expect.
Imagine my surprise an hour later when the young man called to report that the Justice Department had just contacted his boss. The boss, and not the young lawyer, was regarded as a co-conspirator in the case we were working.
Yes, the timing here was most likely coincidental. But, then again, maybe it was not. Maybe, just maybe, these uncanny events prove the truth of the observation that just because you are paranoid doesn’t mean people aren’t out to get you.
Courtesy of the Connecticut Law Tribune.