There’s a term I hear sometimes – these people. It usually comes from a prosecutor or a judge. It happened just the other day. “This is what we have to do with these people.” I distinctly remember hearing it one time from a client. I was visiting him in jail. He said: “You’ve got to get me out of here. I don’t belong here with these people.”
Who are “these people”? The key is that they’re different from us. It’s kind of a good guys vs. bad guys thing, with a little bit of elitism, some tribalism, and a touch of dehumanization thrown in.
Maybe it’s easier to define these people by starting with who is not included. When I hear the term, it is most often in the company of judges and lawyers. So I’m in the clear. Other professionals are safe – doctors and maybe accountants. Government officials, including police, are usually exempt too. Race is a factor, but the majority of these people are white.
The exemption works for many. NY Governor Eliot Spitzer got caught involved with a prostitute. So far he hasn’t even been charged with a crime. NY Comptroller Alan Hevesi was caught stealing over $200K, and he got no jail time. These people don’t get the same treatment.
Bernie Madoff is out on bail. Yes, he had to post $10 million. When “these people” are charged with a crime, the money for bail and for defense lawyers sometimes is vetted to make sure it doesn’t come from inappropriate sources (like the criminal activity). Where did Madoff’s bail money come from? Is there even the slightest chance that his bail money is clean? No. If he were treated like these people, he’d be in jail right now.
Plaxico Burress is a great contrast, facing a minimum of 3 1/2 years. Mayor Bloomberg was out in full force calling for his head:
“I don’t think that anybody should be exempt from that,” Bloomberg said. “It would be an outrage if we don’t prosecute to the fullest extent of the law.” If you don’t go after athletes that would be “a sham, a mockery of the law.”
Why isn’t he going after Madoff? Because Madoff and Bloomberg have been in the same business and social circles for many years. Burress – he’s one of these people. Where was Mayor Bloomberg on Spitzer and Hevesi? Hevesi steals $200K, gets no jail time and Bloomberg is silent. Burress shoots himself in the leg and the Mayor wants 3 1/2 years?
The mentality sustains the criminal justice system. The process is horribly unfair to defendants. People involved in the system would have great difficulty treating their own kind in the way they treat these people. I’ve been a lawyer for 13 years now, and started doing criminal defense about 5 years ago. It is becoming harder and harder for me because the defendants are human. To the extent that their lives are different than mine, it is because I have been so lucky in life, not because they are inferior. It is painful for me to see how our system treats them.
This brings me to the Golden Rule – Do unto others as you would have them do unto you. I prefer a modification of this for the criminal justice system. Suppose you are charged with a crime. Or more powerful, it’s your child. We get many calls from parents distressed over their kid and shocked by how unfair it all is. What kind of process would you want to make sure you and your child get a fair shake? That’s the kind of process everyone should get.
So let’s talk about the process we have now:
Police lie. Not all police, and not all the time, but I have seen so many police officers lie so many times I’m almost getting used to it. What should happen when a police officer lies? If it was your kid they had arrested, and the police officer was lying about what happened, what do you think would be fair?
Prosecutors ignore the lies. In some cases they may even help the officer figure out how best to lie in order to convict the defendant. And judges ignore the lies too. One case stands out vividly in my mind, where the officer mistakenly blurted out something that showed he’d been prepped by someone to lie. When I tried to question the officer about it, the judge stopped me. The prosecutor hadn’t even objected and the judge kept interfering.
So, what process do you think we should have to protect your kid from police lying to convict them?
For starters, let’s require a video camera on every police car. As much as possible, every police encounter should be recorded. This actually does more than protect you and your child from abusive police. It protects good cops from false accusations.
Judges don’t follow the law. The biggest problem I see is a failure to protect defendants’ constitutional rights. Many judges routinely take away the DWI defendant’s license without a hearing – a due process violation. They also disregard the Fourth Amendment when it comes to probable cause. Bail is often set with deference to the prosecutor’s recommendation (instead of the judge’s own determination). The result is excessive bail which intimidates and humiliates the defendant to encourage a plea deal. The true purpose of bail is to prevent the defendant from fleeing, which is really quite rare.
If it was your kid facing the charges, wouldn’t you want the judge to follow the law? Wouldn’t you want the Court to respect constitutional rights?
There are too many crimes. We live in a very complex world. There are so many things going on it gets hard to keep track of it all. Someone fills out a welfare form wrong. A tourist enters the US with too much money. A 19-year-old has sex with a 16-year-old. Smoking marijuana. In some states driving 20 mph over the limit is a crime. There are other ways of dealing with these issues without using the criminal law. So many other countries manage – and have less problems with crime.
The volume of criminal cases makes it harder for defendants to get fair treatment. For those who can’t afford a private lawyer, they get a public defender who has so much going on they can’t devote the necessary attention to each case. The PD walks into court with 100 cases. I walk in with one. The PD can’t possibly provide you with the same attention. We can never completely eliminate this disparity, but we can make it better by not overloading the PD.
Ask yourself – if my kid did that, would I want him prosecuted? I sometimes ask my neighbors something similar. If your kid were caught with marijuana, would you want the cops to arrest him or bring him to you? Almost everyone chooses the latter. Shouldn’t everyone get the same treatment?
Punishments are too harsh. I’m no softie. I’ve had clients who belong in prison. But we are locking up too many people for too long. If your kid was convicted of a crime, you would want a reasonable sentence. So why don’t you want that for someone else’s child? Many convicted defendants suffer from mental health problems. We could do so much more to protect society if we helped them. Putting them in prison doesn’t improve their mental health, and it doesn’t make us safer.
If your kid was guilty, what kind of sentencing would you want? Retribution is a popular approach, but it doesn’t sound as good when it’s your kid facing the time. All of a sudden things like restorative justice and rehabilitation make a lot more sense.
Of course, all of this relates to the title of this blog. We spend tremendous amounts of money trying to lock people up. Our prisons and jails are filled with these people. As a result, many of the children of these people have to get by with one less parent, sometimes two. It would cost less and accomplish more if we sent them to college.
Be wary of “tough on crime” politicians. They want you to think they’re talking about “these people.” Wrong. They’re talking about you and your children. Remember that when yo