BREAKING: Tiger Woods injured in one car accident in LA. We watched the news conference. Do the stupid questions reporters ask annoy you as much as us? Just once I'd like to see a sarcastic answer:
Q: Was any special treatment given to Tiger Woods because he is a celebrity?
A: Yes. Of course. A second and newer ambulance was sent once we were alerted who was injured. The head of orthopedics was called to the hospital to handle the surgery instead of the on-call resident. We have a celebrity-injury check-list that we go through once we realize a celebrity is injured. For example Mr. Woods was offered to have the ambulance stop for a cafe latte once it was determined he was stable. Also a cleaner ER than the standard one was used.
What if we never get back to normal? What if Covid19 lingers and there is a Covid21 and we cannot safely bring jurors into courthouses on a large scale basis? (There goes our chief Judge reaching for her Maalox again because of us. Sorry).
Lets just say we cannot get back to normal. What do we do?
We have some thoughts, naturally.
First: Reexamine our criminal code and prosecution practices and judicial sentencing philosophy. First and foremost the "trial tax" (cue ominous music). Let's start with County Court and misdemeanors. County Judges, you are relevant. Look in the mirror, rinse, repeat. But when the defendant asks for a trial by jury for a first DUI and loses, they DO NOT need to be sentenced to jail. Not when all plea offers for first DUIs are non-jail offers. Ditto for the battery charge, the resisting arrest without violence charge and the Snook out of season charge. People do not need to go to jail for misdemeanors. Period.
Now Circuit Court and felonies. Take the last sentence and substitute "drug possession" for misdemeanors. People do not need to go to prison for drug possession cases. Or any third degree felony for that matter, That is the low hanging fruit. Now buckle up, because it is going to get rough.
What do we do with the serious, violent felonies?
Professional jurors and/or panels of five judges who recommend a sentence along with the verdict. Walk through the REJG any afternoon between 2000-2019 and you will see empty courtrooms and chambers. These judges need something to do! And now we have it- they can be jurors! It will still take six to convict- five jurors, including retired judges and retired lawyers, and the sitting judge must unanimously agree to convict the defendant. The five jurors in the jury box will then recommend a sentence, no complex guideline calculations needed. "Yes, the defendant is technically guilty of burglary of an occupied structure with an assault. But when the defendant broke into her own home that her husband locked her out of and threw a box of graham crackers at him, the sentence should be a withhold and one year probation."
We need to start moving cases. Professional jurors can handle more evidence quicker and can come to common sense verdicts and sentences. And how about this? No voir dire! You get three potential panels of Judges. One panel is picked by the blind clerk. The State can then strike that panel and the second panel is picked by the sight-impaired clerk. The defense then has the final say of panel two or panel three. Takes ten minutes, swear them in and lets start with openings!
Now just stop before you complain that the world will be deprived of your brilliant voir dire, something that Mr. Markus will tell you that we do not have in federal court anyway. And let's be honest, most lawyers stink at voir dire. They get so befuddled about reasonable doubt that they start drowning in hypotheticals until the trial judge rescues them. A more ignominious fate we cannot imagine.
Lawyer: Ok, imagine the sun is shining, and you walk outside and see your car is wet. Is it reasonable doubt to assume a rainstorm fell on just your car or someone came by with a hose?
Juror #1 (raises hand): I don't have a car.
Juror#2 (chimes in): There are no hoses in the jury parking lot. (Other jurors laugh).
Lawyer: Ok, it's snowing out, right, and you see snow on your driveway and....
Juror #3(raises hand): It hasn't snowed in Miami since 1974.
Change is the price of survival. We need to change and adapt. We have to move cases through the maw of the justice system conveyor belt. We need to stop slamming defendants who cannot hire Rumpole for trial and lose, and we need to stream-line the process of trials and make sentences reasonable.
And while we are on our soap-box, let us finish with this. There is no such thing as deterrence. Period. Deterrence is a big deal in federal court under the 3553 factors. We have spent a life time practicing criminal law and not once has a client sat down and said "I had an opportunity to do some mortgage fraud and I was reading the federal law weekly and saw that Judge so and so gave someone three years for mortgage fraud with a loss of under a million and it was affirmed by the 11th circuit so I figured I could risk that. If the sentence had been five years I would not have lied on my mortgage application."
Lawyers, who do not read appellate decisions, commit crimes. So how do we think that some 17 year old kid who grabs a purse or steals an ID and buys an Xbox11 on the web knows the consequences of a crime? Miami is the capitol of medical fraud and has been for 20 years. Doctors have gotten 30 year prison sentences. And more doctors come along and write fake scripts in fake accident cases. The prior sentences on other doctors had no affect on them. So stop with the deterrence crap. It's meaningless.
There.
We said it.
3 comments:
I couldn’t agree more. The whole “promote respect for the law and deterrence” is overrated. It may apply only to the defendant being sentenced but not the public in general. And let’s not forget “to provide just punishment,” there is no such thing. If you go to trial, you get the trial tax; if you go to trial now (in Miami-Dade), how can you ensure that you will get a fair trial with the jurors who may not show up because they are scared of COVID-19?
Most people will get a fair chance to get a “reasonable sentence” if they retain a competent attorney (or get lucky with a great public defender); everyone else just gets slammed. The Justice system is a utopia. It only exists in the minds of prosecutors who seem to think that the longer the prison terms are, the better they are at their job. We are the country with the highest number of incarcerated individuals in the world. Whatever we are doing in the justice system is not working. Plus, the system does not provide comprehensive re-entry opportunities or meaningful opportunities to rehabilitate. Most inmates right now have remained idle for almost a year due to COVID-19 without access to vocational opportunities or programming; this is against the 3553 factors.
Formerly incarcerated individuals get thrown on the street like dogs without meaningful opportunities (jobs, housing, skills); how do judges and prosecutors expect to lower recidivism under this conditions?
Yes, but some kid comes by and sticks a gun in somebodies face and takes their shit...should do time. Period. And, if they do it again, they should do a bunch of time.
And if they do it again (after doing time), what does that say about the justice system? Isn’t it that prisons are supposed to rehabilitate people and help them re-integrate, so they don't recidivate? How do you feel about your tax dollars being misused? It speaks volumes about “punishment” instead of genuine rehabilitation and re-entry. Booker has been one of the most groundbreaking cases for various reasons, precisely because you can’t sentence someone based on the crime alone; you need to look at the person as a whole. And even in the world post-Booker, things are less than perfect. Have you thought about why people are so crazy and focused on criminal justice reform? Because what we have doesn’t work. It’s broken. The First Step Act was not a coincidence. While it was watered down, it is a sign that things have to change. Than mandatory minimums don’t solve anything.
Post a Comment