Monday, December 09, 2013


Update: Our dear friend David O Markus's most difficult blog post: remembering his great father Stuart Markus,  who passed away Sunday. 
Ovalle/Herald Obit here: Best line was by Judge Milt Hirsch- "He was like Atticus Finch....the last small town lawyer in this big town." Is there any higher compliment a lawyer could receive? 

Dr. Martin Luther King, Jr., took the last trip of his life to Memphis, Tennessee in 1968, to fight not for the rights of African Americans, but to support striking sanitation workers. King was planning a second "March on Washington" to duplicate the success of the march he led in 1963. This march was to focus exclusively on economic rights and poverty. But King never made it out of Memphis alive. 

Last Friday we took a cheap and gratuitous shot at the Dade State Attorneys Office on the issue of race, and a few readers rightfully called us out on it. But before you go awarding the SAO a Spirit Of Dr. King Award, the fact that they don't overtly discriminate on the basis of color does not relieve them of their responsibility for recognizing the causes of the crime they prosecute. 

King knew that the challenge for the next generation would not be race, but poverty. 
Poverty is a spirit crushing form of discrimination more insidious than racism. The causes of poverty are for another discussion and perhaps another blog. But the effects of poverty on the criminal justice system need to be recognized and discussed. 

What do you think the mean income is for any random selection of individuals in custody in the Dade County Jail?  What do you expect a child who is born into poverty, only knows his father through jail cells, and has a mother who is a crack addict to become? An engineer? A poet? Or a drug dealer? 
Yes, remarkable examples exist of remarkable individuals who beat the odds and pulled themselves up from less than nothing. But those who cite such examples ignore the phrase "beat the odds". 

When a prosecutors' office incarcerates  a generation of young, poor, poverty stricken individuals who know nothing but crime, and who have never known anything but poverty and  crime, then their actions are worse than racist. 

Let's be clear: our prosecutors' office is not racist. But they are blind and deaf to the root of the problem, which is not the color of a person's skin, but the poverty in to which they were born. 

Do rich kids from Pinecrest commit crimes? Sure. But examine  one significant segment of the population of individuals being prosecuted: those against whom the state is seeking the death penalty. How many were born and raised in Pinecrest or Coral Gables to a stable family? How many had good medical care, educational opportunities, safe home environments, time for play and exposure to arts and music and literature and travel before they ended up a defendant in a death case? Sure you can cite the Joyce Cohen case and one or two others, but we venture that more than 95% of defendants facing the death penalty come from abject poverty and unstable-unsafe home environments. (FN1).  

So what does that mean? Poor people are just more likely to be vicious killers? Well, actually, yes and no. Because while there is no simple answer, most killers are made, not born, and they are made by their  environment. 

The statistics can be extrapolated to almost every type of  quality of life crime (but strangely not such crimes like stock fraud). Who gets arrested for street narcotics sales? Purse snatchings?  Senseless  and tragic robberies of nails salons?  This is not to say we should not fully prosecute the thugs who senselessly killed that poor innocent child in the nail salon recently. 

But if we don't understand what drove that young man to rob that nail salon and what created the type of individual who has no respect for human life, then we are all in danger. Because we cannot incarcerate the 16% of US society that the 2010 census says lives in poverty.  But that is what we see every prosecutors' office trying to do. And to be fair, they are just enforcing the laws promulgated by the legislature. But then again, there used to be laws against Colored People and Jews drinking from the same water fountains in Miami Beach as white people. We looked at a home recently (for a friend) in Bal Harbour that had a restrictive covenant in the deed forbidding the sale of the home to individuals of "1/4 negro blood or 1/8 Jewish blood". And that used to be the law. 

So the Dade SAO does not get a pass for blindly enforcing the law without making any attempt (that we can see) to understand what causes the crimes they prosecute. They have a PTI program for first offenders but that doesn't help  the 19 year old from Liberty City on his 11th arrest. Something caused that kid to get arrested all those times. 

And indeed it was the "content of his character and not the color of his skin." But fifty years after Dr. King dreamed about a society where his children were judged by the content of their character, it's time we start asking what role poverty plays in forming the content of character?  Until that happens, we are no better than the sheriff enforcing Jim Crow laws and racist restrictive covenants in deeds. 

See You In Court. 

FN1: The proof of this is undeniable.   The National Association for the Advancement of Colored People (NAACP) wrote the following in its release “Talking Points: Suspend the Death Penalty,” published on www.naacp.org (accessed Aug. 4, 2008):
“The death penalty is the most lethal form of social injustice in the United States. The race and class bias which permeates the American justice system result in this most extreme punishment being handed out almost exclusively to the poor…
Nearly all of the 3,500 Americans awaiting execution on death row today have low-income backgrounds…


Anonymous said...

There is no question that poverty and crime are related. But to say because that he is poor, he did this, way oversimplifies the problem.

You have to factor many other things that do implicate race...baby mommas, tolerance of criminals, violent culture, are all things that cannot be overlooked.

I can accept that that thug robbed the salon because he was poor, but he squeezed two off for a very different reason. Four people committed that robbery. If they were white, their community would have flooded the tip line and they all would be in custody, not just the killer without the face mask.

Call me racist if it makes you feel better, I am not bigoted. We cannot simply throw around trite little lines....poverty is the problem, etc., and hope to change the problem.

Travon martin is a good example....he should not be dead, zimmerman provoked the encounter by wrongly following him, but martin is dead and zimmerman is free because of the level of violence martin understood to be an appropriate response to being followed. he didn't act that way because he was poor, he behaved that way because he learned from his community that it was acceptable.

Rumpole said...

On Morning Joe this morning they cited a statistic that there are over 22,000 homeless children in NYC. I wonder the percentage of those kids that grow up to be doctors, lawyers, engineers, authors or school teachers versus the percentage that get a felony record?

Anonymous said...


I highly recommend Michelle Alexander's and Carl Hart's books about the relationship between the prosecution of drug crimes and race. With regard to the relationship between poverty and crime, I think even defense attorneys tend to overlook or ignore this critical clue to their clients' behavior, the understanding of which may lead at least to leniency in sentencing. Of course it's not a simple relationship. But poverty can lead to childhood trauma, malnutrition, cognitive deficits, medical neglect and physical disabilities, substandard education and educational tracking, cultural and athletic impoverishment, substance abuse, shame, the lack of meaningful work, or of any real opportunity to support a family.

Anonymous said...

You are correct...i wonder how many don't have a father figure, how many have a mother that has children from different men, how many live in an environment that celebrates violence, lacks respect for women, life, law? A community that tolerates anti-snitching social pressure? You can't put it all on poverty.

Anonymous said...

What effect does poverty have on all those other forces - I submit that it fosters them.

Race is not the cause of the problem - the problem is poverty. The real questions that must be answered require addressing the causes of poverty - slavery, jim crow, separate but equal, current institutional racism. There are a plethora of causes that cannot easily be brushed aside. How do you counterbalance them? I do not know.

Anonymous said...

Each entity has a role to play. The Public Defender's Office defends, you don't expect them to do social services. The SAO prosecutes. The community, the state, local churches, mental health organizations, a TON of other entities, can certainly step in and address the root cause of evil and take responsibility for all of the social welfare factors you recite. The SAO just does what it is assigned to do.

Anonymous said...

You're a disgusting and decrepit human being who blogs utter nonsense. Nincompoop. Idiot. You make me vomit.

Rumpole said...

10:01 that is a complete cop-out. "Just following orders" has never been an ethical defense. And the law vests the prosecutors' office with the DISCRETION on whether or not to seek imposition of things like enhanced sentences, minimum mandatory penalties, or even guideline sentences. Prosecutors are different. They are expected to seek JUSTICE not just convictions. They have the mandate, the power, the ability not to just throw these children of poverty in jail for decades. And it's a moral crime that they don't exercise their discretion more often.

Anonymous said...

Part of the structural problem is that most ASAs not only come from the same privileged backgrounds as we defense attorneys, but are also about 26 years old on average. They have had limited opportunities to fall in love, get dumped, make terrible mistakes with regard to alcohol, witness divorce, struggle to pay mortgages, parent children, bury loved ones, etc. It's the rare 26 or 27 year old that has the breadth of life experience it would take to truly appreciate the points you raise.

I don't have an answer, but it's unfortunate we cannot afford to pay a salary to ASAs that would make it a feasible career for people into their 30s and 40s - people that might have a greater lived experience of "justice".

Anonymous said...

Getting back to the outrageous police conduct in Miami Gardens. The police arrest an employee of the store multiple times for trespassing at his place of employment, they are informed many times by the owner/victim that the man works there and is not trespassing. How is that not at least false imprisonment and at worse armed kidnapping? The police swear on an a form that the individual is stopped and arrested outside the store, the VIDEO shows the poor man being arrested and taken into custody inside the store. How is that not perjury? The sao is not racist but their actions in this case is a disturbing dereliction of duty and makes them compilicit to the harrasment and terrorizing of decent small business owners in the community. The actions of these cops is an insult to decent policemen and exposes the law abiding to danger.

Anonymous said...

Rump is right.

Anonymous said...

1:30PM: We can afford it, we just don't want to. Teachers, police, firefighters, and even PDs make more than ASAs. There is no reason ASAs can't be paid a decent wage on par with their education and experience.

Anonymous said...

I don't think 10:01's answer is a complete cop-out, Rumpole. Just an easy one.
10:01 is right, by the time any one individual ASA gets a case like you describe, it's often to late for the ASA to get the 19 y.o. kid the type of help s/he needs.
And often there's the mentality that an enhanced penalty, stiffer sentence, may be exactly what the kid needs.
If he hasn't learned anything from arrest 1-10, maybe an enhanced penalty will keep teach them.

Anonymous said...

"You're a disgusting and decrepit human being who blogs utter nonsense. Nincompoop. Idiot. You make me vomit."

Which one - Rumpole or the racist?

Anonymous said...

2:25 per people who are embedded deep inside the Miami PD's office, the 5th floor thinking is that the model will be to keep PDs 3 years. I have to imagine the SAO uses the same model. It's structured as a job for young, single people with studio apartments on south beach or women with rich husbands. It's great that young attorneys get that trial experience, but the cost is that defendants are trying to contextualize their crimes to prosecutors who have only lived outside a dorm for a few years.

DS said...

I have had many a client who fits the mold of the poor, predictable criminal.
In fact, ALL my clients are poor and come from a deprived environments.
But, Rump how do we explain that their Mother's are working, sometimes decent jobs and their Brothers or Sisters have escaped and become successful ?
One sibling goes bad, another becomes a cop, corrections or a Teacher, maybe even a lawyer?

I wish I had an answer

Rumpole said...

As much as I understand your comment was a nice one about a friend who was in the paper with his son, I do not UNDER ANY CIRCUMSTANCES allow comments about a person's family. Even well intentioned. Because what will occur is morons will get that child's name and start making horrific comments on this and other blogs. So I just don't allow it. Ever.

Anonymous said...

Rump nicely re-tweeting David Ovalle's obit for Stuart Markus- dad of David O Markus died at age 81 Sunday.

Anonymous said...

Rumpole, what type of Justice are you seeking. It seems that you are advocating that prosecutors give a pass to defendants with the most priors since the more crimes someone commits must correlate to the poverty level of the individual. Therefore, based on your reasoning, the State should vigorously prosecute defendants with no priors and give a pass to those with multiple priors. Obviously, victims also need to understand that their victimization was based on societal inequalities and not try to seek justice. After all, chances are that some of these victims are financially better of that the poor defendant charged with a crime. As, a prosecutor, I will focus on reality rather than ideological utopian ideas and vigorously prosecute defendants of all races based on the crimes they commit and their priors. I will use my discretion when appropriate and lock up defendants who pose a danger to the community. I would recommend that you read Losing Ground by Charles Murray. It is authored by one the main architects of the Great Society and it depicts the utter failure of government's obsession with eliminating poverty.

Rumpole said...

I understand. You won't stop until you lock up every poor person in America. You've been wound up, pointed in a direction and off you go. You pass the warning sign that says the US has more citizens incarcerated then Apartheid South Africa ever did, and you just keep marching. You pass the sign that says the US has more of its citizens locked up then the Soviet Gulag every had, and you keep walking. Eventually that walk will be lonely- you're going to be the only one left.

Enjoy the journey.

Anonymous said...


Its not just poor people. You got it all wrong. Poor is an big element but bigger then that iss the fact that a majority of black men dip on the family. A son needs a dad. Add poor black and no dad and lots of time you get crime.

Anonymous said...

Rumpole is a disgusting pig. He lies and manipulates to hurt people. He thinks because he looks good and writes well he can hurt people with impunity. You should all be aware.

Anonymous said...

To DS, the fact that his sibling escapes the doom of the justice building doesn't mean you can't understand and explain your client's misconduct. Maybe the sibling: did not have that high untreated fever, ate less of peeling lead-based paint, excelled at sports because he didn't break his leg in a fall from his crib, had an inspiring teacher, was the grandma's special favorite, did not inherit the genetic predisposition to mental illness/substance abuse, etc. Each person's experience of the same environment is different.

To the ASA, Rumpole of course is correct that we practice mass incarceration on a nearly-unparalleled scale, chiefly upon people of color. But you quite understandably have a goal to protect the community. A question you could ask yourself is: What sentence, other than lengthy incarceration, can be imposed upon a defendant that will achieve your goal. Maybe a sentence to probation that includes lengthy residential treatment followed by other robust services and close monitoring. Such a sentence won't safeguard the public from all risk of harm. But neither does a lengthy prison sentence -- the defendant could harm correctional officers, nurses, other inmates. Furthermore, former prisoners have high rates of recidivism because of the conditions of incarceration.

But a sentence that attempts to address why the defendant offended reduces the risk of recidivism. There are lots of scientific studies of this phenomenon, including most recently one from Sweden. I know its fun to sneer at Sweden, but it has had a huge wave of immigration after the Iraq invasion; and has a huge alcoholism problem. It managed to drastically reduce recidivism through refraining from incarceration in favor of ameliorative services. FWIW, this is also a much more economical approach to crime.

Anonymous said...

Understand your concern about the # of people locked up. But is that the 'fault' of the prosecutor? You make it sound almost like it is.
Isn't it the fault of the person who committed the crime?
If anyone is to get a share of the blame, I think it's the legislature with it's overcriminalization of the country's laws. The legislators have the ability to fund the education system and the programs that that would help the type of defendants we're talking about.
We should all get more involved in local legislative races as these are the ones that really affect us.

Anonymous said...

Whatever the cause - black white or pink, people who commit violent crimes on innocent people - robberies, occupied burglaries, etc., should be locked up for the protection of everybody - if they commit another violent crime, they should receive more time. A third time, I am fine with locking them up till they are 75.

Anonymous said...

Word has reached me that sharpy has past away. This is sudden and sad news although I know he lived a fun and full life.

Kissimmee Kid said...

"Race is not the cause of the problem - the problem is poverty." The problem with this well meaning notion is that it ignores the fact that we push people into poverty because of race. "Separate but equal never was." There is a whole generation of blacks that got an inferior education. When the men of Florida came back from WWII, the white men had a whole field of opportunity open to them. The black men were beaten and lynched.

My white Dad came from the war, built a business and sent me to law school. No one can honestly claim the black men who came back from the same war had the same opportunity. That their sons and grandsons languish in poverty is due only to racism; racism that I see around me every day.

Where I live, the crappy schools are in black neighborhoods, filled with black kids. The good schools are in white neighborhoods. I'd wager in Miami, the contrast is worse.

It is hard to pull yourself up by the bootstraps while the racists are kicking you in the face.