African Americans, the Poor in Court and Sentencing Reform
As one person I read consistently would say upon discovery of something quite obvious; “Quelle Surprise.”
I was told if I saw a prisoner, a parolee, or an Ex with a tattoo of the number “13-1/2” on their arm, it meant 1 judge, 12 jurors, and 1/2 of a chance. 1/2 of a chance to win in court as the cards were stacked against those who could not afford adequate representation or were African American. For sure if you went to trial, the resulting sentencing would be harsher as you made them work rather than accept the offered plea bargain.
Part of the sentencing reform as proposed by Congress, backed by the Koch Bros, and supported by CAP as well as other progressive orgs. is meant to prevent the Koch Bros. associates and white collar business types from going to prison when they break the law. As to be expected, the Koch Bros. could care less about minorities and the people lacking economic means to fight back in court to prevent going to prison. Mind you now, those minorities and people of little means would still benefit from an early release; however, the effort by the Koch Bros., CAP, etc. does nothing to prevent them from going to prison in the first place.
I had previously warned on another site the effort to revise sentencing guidelines is flawed as it failed to address the upfront justice system as I explain here;
The issue was always in the courts and how defendants are represented and what avenues they had available to them once and if they were convicted and sentenced. The resources are not there, they are over burdened, and they are understaffed. Defendants do not raise much of a fight in the courtroom as they lack the resource to do so. Today, plea bargaining rules the courtroom and 85%+ of all cases before a judge are plea bargained away with many defendants even signing away their rights to appeal for a period of time. It is a matter of expediency as counties and states do not want to fund the courts and defendants can be moved through the system speedily to the prisons. Besides prisons being in unlikely places away from the crowds, they are an economic incentive as they employ people and raise tax revenue in areas not populated by business.
What is happening in states and in Congress is akin to giving a person with pneumonia an aspirin and telling them they are cured. For all that is said, talked and written about for criminal justice reform, it is a just bromide to the true issues. Besides have any of you looked at the tenets of parole?
Tethering in one state costs $13 per day for the parolee just released from prison and to which there is no escape. At the end of a 2 year parole, the parolee owes a state ~$9,490 if they do not pay it as they go along (mind you they may not have a job in this economic environment). If you do not complete paying for it, you are kept on parole until it is paid. If you refuse to pay it, you go back to prison. States use these funds to finance other state costs besides just keeping tabs on the parolee.
In most states, the Parole Officer judgment is the same as a court’s decision. A prison psychiatrist can decide a parolee needs no additional counseling only to be overruled by the Parole Officer. The length of the counseling is set by them also as they all have their medical degrees(?). The parolee pays for this also. If the parolee fails the course, the course can be extended or they can go back to prison. So much for the issue of recidivism.
Today, the Washington Monthly admitted they were taken in by the efforts of the Koch Brothers. The Koch Brothers have no interest in justice for all as the administration found out and the Washington Monthly (and I assume the CAP) also found out.
“One of those bills – which has been supported by Koch Industries, libertarians and business groups – would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.
Many laws already carry such a requirement — known as “mens rea” – but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws. Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.”
Why would the Koch Brothers be interested in such a change? It appears “‘Koch Petroleum Group knowingly and voluntarily pleaded guilty to criminal violations of the Clean Air Act and to making false statements,’ the DOJ spokesman, Wyn Hornbuckle, said. ‘These admissions and the significant criminal liability in this matter speak for themselves.'”
Is ignorance of the law an excuse for having committed a felony? It sure does not work when caught speeding (misdemeanor) . . . “well officer, I did not see the speed limit sign,” nor does it work when a person lacks cognizance when committing a crime as witnessed by the numbers of mentally ill locked away in prisons. One recent case has arisen where a 21 year old with the capacity of a seven year old is being charged after tweeting threats to schools. Reading the comments of people who know him, it does not appear he might have an evil intent or mind. The difference between the two being, those who are capable in making cognizant decisions and those being incapable of doing so (Bev Jack?). Even though it is not fool proof and when there is a question of ignorance of the law, it is time to ask for a jury trial. In which case, one can test the law by asking the question, “what would a reasonable man expect and do?”
This really is not the question in that there are those who have better standing in court than the average or less than average citizen due to the availability of resource. Those who have better resource and as a result better standing in court no longer want to make their case and be given a pass. November 24 in a NYT article “Rare White House Accord With Koch Brothers on Sentencing Frays”. Why would this be? It appears H.R. 4002 sponsored by “Wisconsin Republican Jim Sensenbrenner has made it complicated for House Democrats who have been warned (by Republicans) the passage of H.R. 4002 would be essential for obtaining support from Republicans for a larger package of criminal justice bills.” What does this bill do?
In effect it gives businesses a get out of jail free card; “would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects ‘knew, or had reason to believe, the conduct was unlawful,’ and did not simply unknowingly violate the law.”
Many laws already contain such language which causes the court to prove the defendant knowingly violated the law (except in the case of insanity where the burden of proof is with the defendant). As DOJ spokesman Melanie Newman stated: “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal.” Those who suffer from mental illness have to prove they lacked an evil mindset and those who do not declare mental illness, do not have such a burden. The potential impact is many more of those could cause potential harm to the environment and walk free. The mentally ill (favored scapegoat of the NRA and weapons promoters these days) are held to a higher standard.
“The proposed standard, Justice Department officials said, might have prevented guilty pleas in a variety of cases, such as the charges filed in 2013 against Jensen Farms of Colorado for failing to adequately clean cantaloupe, resulting in an outbreak of food-borne illness that was cited as a factor in at least 33 deaths. It also might have prevented the plea in the 2012 charges against the owner of a pharmacy who sold mislabeled, super-potent painkillers blamed in three deaths.” The same holds true for “a compounding drug company prepared drugs for injection which resulted in a total of 25 deaths and injury in Michigan and other states.
Even so, some liberal representatives still support the legislation which may result from the passage of H.R 4002 even though it does little to provide the necessary representation in court for minorities and others to get a fair trial without plea bargaining. In a statement on Tuesday (November), Michigan Representative John Conyers said “he supported the bill which the Judiciary Committee approved by voice vote last week because outside parties had raised ‘a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.’” Seriously, Representative John Conyers? Where is the concern for your constituents who face the courts on a daily basis with nothing to defend themselves other than plea-bargains and the grace of the court (if such exists). The present legislation is little more than a back door correction of what happens and should not have happened in the first place during court proceeding.
Critics have said those who oppose the change due to the Sensenbrenner addition are exaggerating the impact of it as it is only a small portion of the entire bill focusing on eliminating mandatory sentencing. The elimination of mandatory sentencing will not stop a judge from applying a harsh sentence forcing a defendant to apply to a COA to overturn the judge and costing $thousands more. It is true a reduction in sentencing will help the overall issue of too many in prison; but, this solution is only a part of the problem. Most of the issue is on the front end of the justice system in the US. The lack of adequate representation, the under-staffing of public defender offices, the cutting of funds for public defenders, the over use of plea bargaining to short circuit the justice system, the burdens on courts, etc. The poor and minorities deserve the same representation and access to justice as what the associates of the Koch Bros. industries receive in court. This is a far bigger problem and sends many more people to prison than does drug sentencing which could be mitigated if better representation existed. It is here Congress, Conyers, CAP and all the progressive orgs should spend their money and energy. Otherwise much of the effort will not yield the payoff in preventing people from going to prison as expected.
12 Jurors, 1 judge, and 1/2 of a chance.
My $.02 . . .
References:
A Study In Contrasts Nancy LeTourneau; Washington Monthly
Criminal Justice Reform: It Depends Upon Where You Look; Ed Kilgore; Washington Monthly
Quick Takes – my answer to Washington Monthly; Nancy LeTourneau; Washington Monthly
Rare White House Accord With Koch Brothers on Sentencing Frays; Matt Apuzzo and Eric Lipton; NYT
As a former public defender, obviously I back all the calls for more research.
One correction: the percent of plea bargains is a stupid metric. High trial numbers mean one of two things: crazy prosecutors asking for too much or innocent clients (defendants).
A perfect system would feature open file discovery by the state (some prosecutors already do this) and reasonable prosecutors. Combine this w/ good cops who don’t violate the Constitution and you wind up with very few trials.
“Research” is somehow the autocorrected version of “resources”.
noted
I would add that many plea bargains, like civil settlements, result from the uncertainties of trial, whether by juries or bench proceedings, and the time and logistical pressures on courts making multiple trials impossible for the courts to hear in anything like a timely fashion. On this topic I always recall a general counsel for the CTA in Chicago who became upset with what he felt were unreasonable trial pressures on his agency ordered by the presiding judge who ordered his staff to refuse to settle any cases until further order causing the law division (civil) to come to a complete standstill. He and the presiding judge quickly resolved their differences and the system began moving again. That’s tougher for the criminal defense bar to pull off since it means their clients will remain incarcerated longer due to their inability to make bail.
JackD:
I remember your story on the CTA lawyer and the judge. Not sure when or where I heard it and it may have been over coffee one time. In many cases and maybe that means most cases, the uncertainty over trial for the little guy means the PD or attorney does not want to take the risk. Remember the person represented always pays regardless. My post is more about the little guy than anything else. We were lucky and most of the others are not so lucky. I was not confined financially as most of the others might be.
What sticks in my throat is the Koch Bros representing themselves as a little guy and using Sensenbrenner to do their bidding.
Very tired today.
Run, as you know, a huge pet peeve of mine is the states’-rights-to-violate-individuals’-rights Conservative Legal Movement juggernaut. And, also as you know, I believe that so much of what is at issue here—most certainly an, um, certain state’s parole-and-release-from-parole-depends-on-your-ability-to-pay-nearly-$10,000-for-the-release law—should be challenged in federal court as patently unconstitutional. And I believe that the Sixth Circuit, the federal regional circuit court group in which that certain state is located, is exactly the perfect circuit in which in which to bring that lawsuit for declaratory judgment. And I believe that this is exactly the right time for such a lawsuit. That fee is not part of the parolee’s sentence; it is mandated by a funding statute, and it patently violates the Fourteenth Amendment’s due process and equal protection clauses. Period.
But, much more broadly, what is necessary is a direct hit, through federal legislation, that removes the outrageous Supreme Court-initiated jurisdictional, quasi-jurisdictional and procedural bars to bringing constitutional challenges of this sort—bars that themselves are flagrantly unconstitutional not least because they violate the constitutional precept of separation of powers among the three branches of the federal government. Article III, the part of the original Constitution that created the federal judicial branch expressly gives to Congress, not the courts, the authority—the sole authority—to determine federal-court “subject matter” jurisdiction, subject only to judicial determination of the constitutionality of a particular statutory grant of jurisdiction or statutory bar to (or failure to provide) jurisdiction concerning some “subject”—i.e., some type of case.
This absolutely should not be limited to criminal and quasi-criminal matters; the breadth, starkness and casual routineness of violations of even the most basic of human rights and procedural and substantive due process rights in adult-guardianship and conservatorship cases and in some family law cases presumably also would end with the death of the Supreme Court-created Rooker-Feldman “doctrine” and the Younger abstention “doctrine”, both which unequivocally violate the doctrine of separation of powers. Among other basic constitutional premises.
Equally important, separate legislation should prohibit the veritable slew of state and (mostly) local government laws concerning bail, arrests for certain things such as looking at a cop or refusing to comply with a cop’s arbitrary command, and the like, and provisions that fund municipalities via tickets and ordinance violation citations and court fees and the like. And that remove arbitrary (i.e., bizarre and/or impossible for the person to meet the requirement or otherwise comply) conditions of parole or suspended sentence or non-prison sentence, in criminal and non-criminal matters such as child-support. Walter Scott, the middle-aged man shot in the back and killed by a North Charleston, SC cop earlier this year had been stopped by the cop for a minor traffic violation and started running away because there was a warrant out for his arrest for failure to meet child-support payment requirements that he had no ability to meet. His brother said that the judge’s response when he told her that he had no way to pay the amount ordered was something to the effect of, “Too bad.”
A huge problem is that there is this widespread belief that the federal government has no constitutional authority to legislate to prohibit these practices. But that is flatly wrong; Section 5 of the Fourteenth Amendment expressly gives Congress the authority to enact legislation of this sort.
For months now I’ve planned to write a detailed post here at AB on all this, and then send the link to it to Burlington, VT lawyer I know of who is a close, longtime friend of Bernie Sanders’ and ask the lawyer to forward the link to Sanders. Maybe in the next week or so, I’ll actually do that. Sanders could introduce actual legislation of these sorts, now, in the Senate, rather than just make it a campaign proposal.
And the best part is that there is now, finally, a strong feeling on the part of certain prominent libertarian conservatives in support of clear and major legal change on these fronts. One, which absolutely blew me away when I learned of it a few days ago, is a legal challenge on behalf of African American residents of a tiny Missouri municipality and who are being represented pro bono by a libertarian Conservative Legal Movement lawyers’ group. The very thrust of the challenge is based on the premise that due process, including what is known as “substantive” (i.e., non-procedural) due process, protects INDIVIDUALS as against government at any level. The very essence of due process protects individuals against state and local governments, too. It does not just protect individuals against the federal government. And it does not protect states as against individuals.
I learned of it last weekend when none other than George Will devoted his column that day to it. Will has been outspoken for a long time now on some of the outrageous things of the sort he discusses in that column. I know that almost all of the current presidential candidates believe it is still the 1980s or ‘90s. But it is not.
And a final point: I’ve said now too many times to count, including a few times here at AB, that I would love to see some major international human rights group bring the American justice system and state and municipal prison systems into the International Criminal Court. They could start by charging the folks who run the NYC and New York state prison systems with profound violations of human rights.
And, yes, maybe the next time, then, that Ruth Bader Ginsburg uses one of the Court’s many weeks-long breaks from the tough job of justicing to trot across the globe to lecture other countries’ officials about the glories of America’s wondrous legal and judicial system, as she did earlier this year when she jetted out to Australia to speak at some international judicial conference or some such, a conference attendee will stand up and say, “Oh, stop.”
Ginsburg, btw, is, in my opinion, the most overrated current liberal icon of any.
Yeah, Bill, you hit a nerve.
Bev,
Last time I looked, we hadn’t signed on to the International Criminal Court.
Hmm. Well, that itself is revealing, Jack; hadn’t realized that.
May I suggest extraordinary rendition?
Sensenbrenner tried really hard as House Judiciary Committee chair back about 10 years ago to get a bill passed that would establish an independent Office of Inspector General to investigate allegations of serious misconduct by members of the federal judiciary, scrapping the Potemkin Village arrangement that has existed by statute for many decades now.
He’s sort of a personal hero of mine.
The conventional wisdom is that the U.S. didn’t sign on for the iCC in order to protect Henry Kissinger. These days, of course, he isn’t the only possible defendant.
More than 30 years ago a good friend of mine graduated from law school and wanted to work in the Public Defender’s office. She could have gone anywhere with her grades and school, but wanted to help people.
A year later she left, and her reasons were almost all included in this story. 10 Pds; 50 or 60 cases at a time; one investigator for the entire department. She said it was totally impossible to work for her clients. But one thing finally forced her to give up.
She goes to a lineup. The lineup was in the county jail. Her client was a tall, dark skinned black man who was extremely thin.
The lineup entered the room all dressed in prison clothes. Not one person in the lineup was more than five inches shorter than her client. Not one person in the lineup was thin. One person in the lineup was a short, fat white guy. And the black guys in the lineup were all light skinned.
Course, the result was mailed in, despite the lineup violating all kinds of rules.
Sounds like things have gotten worse.