Justice in America is Over-rated, Unless One is Wealthy
By Mona
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Oh yes, that “liberal” sentiment is one that this libertarian has always held, and is also one of the areas in which a good many on the left seem unaware that many if not most of us “capitalist tools” largely concur with them. Certainly I recall few libertarians disputing that Gideon v. Wainright was correctly decided; a poor man in Florida, Clarence Gideon, was charged with a petty burglary of a pool hall, and wanted a lawyer — our “liberal” Supreme Court held in 1963 that Gideon had a right to one, after he was convicted while defending himself (the trial court had denied him state-funded counsel) and sentenced to five years in a Florida prison.
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Gideon, you see, had written to the S. Ct. on prison stationery and claimed his right to counsel pursuant to the 6th Amendment had been violated; astonishingly, the High Court granted cert. On remand — after SCOTUS found in his favor — Gideon was retried with counsel, and acquitted.
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The right to a lawyer in any criminal case is a bedrock principle of American (or any other modern) justice system, and the Founders could not have anticipated the vast resources which the state would eventually bring to bear on defendants, or that hiring a decent defense attorney would cost more — by many, many magnitudes — than the 18th century price of replacing a muffler (if, you know, they’d had mufflers other than the thingie you wear during cold weather). Nor could they have anticipated that forensic science and state investigators would come to exist as a huge and expensive hammer, wielded by the prosecutors office, resources that are simply beyond the financial reach of the vast majority of citizens to fight when their life or liberty are on the line. An American criminal defendant faces a well-heeled state monolith, and if assigned an attorney, is represented by an under-paid, over-worked public defender, and — in spite of some of them being altruistic souls who perform superbly without a care to the awful pay — that job simply does not usually attract even mediocre lawyers.
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Further, forensic labs are replete with unchecked (and mostly uncheckable due to systemic flaws) error, and tainted by their allegiance to the prosecutor/law enforcement agencies that house them. To put it mildly, the circumstances do not permit the scientists at such labs to function in the neutral setting that ideally is the environment in which scientists toil. As the vice president of research at Reason Foundation, Adrian Moore, explains:
Forensics primarily means a process of arguing and debate, and only secondarily the examination of crime scene evidence. But the way forensics operates today couldn’t be further from open debate and dispute. Rather, forensics is a tool in the service of the prosecution. Unlike [the television series] CSI, the forensics experts almost never solve the crime, they analyze the evidence provided by the police and prosecution and the prosecutors are their bosses..[…].There are many problems with the way forensic services are structured today. They are not independent analysts, but are employed by one side of the system and are part of the culture and team of the prosecution. The list of outrageous forensic errors grows larger each year, and almost none of them involve letting a guilty person go free. No, the errors are very one sided, false convictions of innocent. We should not be surprised, given that the forensics players are on the prosecutions team.
Moore is hardly alone is his insights and concerns. Roger Koppl, director of the Institute for Forensic Science Administration, states:
The life-altering injustices suffered by the affluent white defendants [in the Duke lacrosse case] are precisely the sort of injustices suffered regularly by many of America’s less privileged citizens..DNA is no magic bullet of truth when the testers are aligned unambiguously with the prosecution…..When forensic scientists work exclusively for the prosecution, we should expect errors and abuse. Using post-conviction DNA evidence, the Innocence Project has helped exonerate nearly 200 people wrongly convicted of crimes. A study of the first 86 such cases, published in the journal Science, found faulty forensics played a role in almost two-thirds of those convictions..The time has come to free forensic science from the pressures of prosecutorial bias. To that end, crime labs should become independent of police and prosecutors, and public defenders should be given greater access to forensic advice and testing. Crime labs should be independent, operating under the supervision of an officer of the court, who would be responsible for assigning forensic evidence to laboratories and ensuring that all crime labs in the system are following proper scientific procedures.
And indeed, access to competent, neutral forensic scientists is a fundamental must for many criminal defendants. But it is not enough. When the state seeks to take your life, liberty or property (can you say, “economic-security-destroying asset forfeiture?”), the prosecutor should have to face a state apparatus funded to exactly the same degree, and with all the resources, brought to bear on the accused. The DNA exonerations from the Innocence Project are wonderful, but strongly suggest something is very wrong; that many innocents languish in prison where DNA is not at issue, in large part because the system is so incredibly skewed against defendants of modest means.
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About the destruction of evidence known as “the torture videos” and the concomitant, strongly implied complicity of high Bush administration officials in the felony called obstruction of justice, Greenwald in that context observes, his emphasis:
As Matt Stoller recently noted in an excellent post on the bipartisan orthodoxies that are untouchable in political debates, “there are 1 million people put in jail for doing what Barack Obama, Bill Clinton, and George Bush have done” (buying and consuming illegal drugs) and “2 million people are in prison in America, by far the highest total of any other country in the world.” It’s almost impossible for the non-rich to defend themselves effectively against government accusations of criminality, and judges have increasingly less sentencing discretion to avoid imposing harsh jail terms. Punishment for crimes is for the masses only, not for members in good standing of our political and corporate establishment.
If our government can illegally torture people with impunity, if it is able to destroy evidence and get away with it, but the average among us - no small number of us innocent — get sent to a hellish prison for not having the funds to defend ourselves from a prosecutorial Leviathan, then we have ceased to be the America the Founders meant to found. We are then a country by the rich and elite and for the rich and elite.
I’m a libertarian, and I endorse that message.
Comment by Dave W. —
December 30, 2007 @ 8:45 pm
Do you think further reforms are needed to effectively give poor people their 6th amendment rights? Do you think the Gideon court went far enough, Mona?
Comment by Evan Robinson —
December 30, 2007 @ 9:33 pm
On a practical basis, the US is no longer a nation of laws. I cannot imagine that high-ranking members of the Bush Administration will ever be indicted or stand trial for their “high crimes and misdemeanors”.
We’re there. Abu Ghraib, Guantanamo, extraordinary rendition, waterboarding, elections where votes are counted by members of one or another campaign organization, Bush v. Gore… All signs that the law doesn’t matter any more — the only thing that matters is what you can get away with.
I’m glad I’m in Canada.
Comment by Lawrence Krubner —
December 30, 2007 @ 10:49 pm
The right to an attorney was one of those rights that had been a tradition of long standing in England, but it was suppressed by the Stuart kings in the early 1600s. It then emerged as one of the central demands of some of the radicals during the English Revolution. It finally became part of the British Constitution in 1688, with the passage of the English Bill Of Rights.
It is not a coincidence that this same period saw the emergence of modern Western science, and a scientific method that demanded that every hypothesis be open to question. The Stuart Kings, and religious leaders like Laud, had felt that lawyers, with their clever words, would hide the truth. Our modern, adversarial legal system was seen as a threat by those who wanted to establish the absolute truth during court cases. An acceptance of the fact, both in law and in science, that sometimes there was insufficient evidence to establish the absolute truth was one of the big transformations of the era.
It seems rather sad to think now science should be so perverted as to serve only on one side of our adversarial system.
Comment by LarryM —
December 30, 2007 @ 11:50 pm
I’m surprised that you haven’t gotten flak yet about your astonishingly ill-informed comment about public defenders. While it’s true that the quality of counsel given to the indigent varies greatly from one jurisdiction to another, (1) it tends to be remarkably good in many jurisdictions, and (b) when it’s bad, it generally isn’t bad because of the quality of the attorneys drawn to it, but for other reasons. The biggest problem is caseloads - but, again, that problem varies tremendously from jurisdiction to jurisdiction; caseloads tend to be high but managable in many juridictions. In any event, generaly speaking the problem is not that the job “fails to attract even mediocre lawyers” - the quality of people who are attracted to public defender work is quite high.
And the absolute worst indigent defenses tends to be provided in juridictions that lack public defender offices entirely - where inigent defense is provided by individual court appointed private attorneys,who are not public defenders.
Anyway, I have no time for many more details; hopefully other commenters will educate you to some extent. But one place you might want to look is the Defender Association of Philadelphia’s Homicide unit, which has an astonishingly good record, and some of the very best homicide attorneys in the nation.
And, of course, your larger point is correct, the quality of indigent defense is variable and often poor (again, especially in the many jurisdictions which do not have public defender offices) and it is certainly true that lack of resources is problematic even in the best public defender offices in the bation.
Comment by LarryM —
December 30, 2007 @ 11:58 pm
There is a little irony here, though, which is kind of implied in your post, but which you seem unaware of. I may be tellingtales out of school, here, but in those jurisdictions which have quality public dfender’s offices, a person who qualifies for a public defender is often significantly better off than a person of modest means who doesn’t qualify. Because if you want to talk about a pool of “less than mediocre” attorneys, it is the lower rungs of the the private criminal defense bar - the kind of people that a person of limited means can afford to hire.
And, again as you suggest, if you are a person of modest means facing complex forensic evidence (most criminal cases don’t, but obviously some do), then you bettter be either rich or indigent and VERY lucky as to the juridiction in which the prosecution is commenced.
Comment by LarryM —
December 31, 2007 @ 12:00 am
Okay, I could have used an editor on that last post, but hopefully my point is clear.
Comment by LarryM —
December 31, 2007 @ 12:05 am
Finally, while I do agree that the system is horribly skewed against defendants in many ways, one of the biggest problems leading to the kind of convictions that get overturned with DNA evidence is the unreliability of identification testimony. Unfortunately, given the fact that in most jurisdictions a defendant is not allowed to present expert testimony on this issue, and that most juries treat identification testimony with (to say the least) insufficient scepticism, even with the best representation in the world, there will be many innocents convicted based upon mistaken identity.
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December 31, 2007 @ 8:14 am
Ohio County to End Use of Touch-Screen Voting…
COLUMBUS, Ohio, Dec. 21 — Ohio’s chief elections officer decided Friday to have the state’s most p…
Comment by Dave Woycechowsky —
December 31, 2007 @ 8:17 am
This is one of those thds where I wonder what Wriggley’s would say. wonder if he will be back in ‘08?
Comment by Mona —
December 31, 2007 @ 11:12 am
LarryM: I stand by post, and require no “education” to hold forth as I do on the matter of public defenders: (1) I allowed that some are superb, (2) I myself functioned as a court-appointed criminal defense attorney when I was 3 months new to the bar; my employers considered it a good way for ignorant me to learn and so had me add my name to the list of the willing, even tho we could bill at less than half the usual firm rate, and (3) one individual attorney in that rural area has built his practice around these court-appointed cases, and he is widely known to be a moron who has never risked taking a case to trial.
Comment by larrym —
December 31, 2007 @ 11:24 am
Frankly, Mona, that just makes it worse - you can’t plead ignorance. I mean, really, how can you possibly “stand by” the following disgraceful statement:
“that job {public defender] simply does not usually attract even mediocre lawyers.”
I do wonder where you practice, and if perhaps your jurisdiction has colored your impressions.
Oh, and just to be clear to the non-attorneys out there, Mona’s second and third points do not represent a disagreement with what I’m saying - there is a huge distinction between private court appointed attorneys, who are indeed typically (though not universally) inexperienced, inept, or both, and public defenders, who are generally neither.
Comment by Timothy —
December 31, 2007 @ 12:28 pm
Mona’s making a pretty basic economic argument, here, Larry. “Get what you pay for” etc. High quality attorneys with good pedigrees often choose much more lucrative careers than public defense. If you’ve got a lot of alternatives, the shitty pay plus the cost of law school make “Public Defender” not a top pick for careers. Folks in the top of their class at Harvard or even Texas don’t end up in the public defender’s office that often, they mostly end up billing 2000 hours a year at Bracewell & Patterson (I refuse to call it by its new, crapified name). This is not to say that the people in the Public Defender’s office are bad, or don’t do the best they can with the resources available, but only that most of them aren’t exactly Robert Shapiro.
Of course, most prosecutors aren’t exactly Jack McCoy either.
Comment by LarryM —
December 31, 2007 @ 1:43 pm
Sigh. This is REALLY pathetic. I’m more libertarian every day, but one reason it took me so long to get there, and one reason that I still am not all of the way there, is this bizzzare free market fundementalis so many libertarians have.
There are several problemns with your analysis, apart from the simple fact that it isn’t empirically correct. The first is that economic motivations, as in most parts of life, do not fully explain behavior. In this particular case, two other factors work in the other direction - firstly, idealism, secondly, a desire to get litigation experience. The later may need a little elaboration: virtually the nly “entry level” legal jobs available which give young lawyers significant courtroom experience are positions with public defender and district atttorney offices.
The economic issues are not as clear cut as you might think either. In some jurisdictions (sadly not all or even most) assistant public defender saleries are comperable to assistant district attorney salaries.
Now, generally speaking, the top graduates from top lawa schools aren’t going to be going into PD work - but they aren’t going into DA work either. (Though there are exceptions - my ex took a job with the Philadelphia Public Defenders’ office right out of Harvard law, for one example, and I could list several others).
Honestly, my experience - granted, it was with two relatively well funded big city Public Defenders offices - was that the quality of the attorneys in the public defenders’ offices was HIGHER than the quality in the DA’s office. THe reasons for this were complex (perhaps another post if I have time), and that edge in skill was outweighed by other factors (prosecution friendly judges, resource differentials, etc.).
But really, even if you want to call my experience atypical, the “even mediocre lawyers” comment was astonishingly ignorant, and I’m flabergasted that Mona isn’t backing down on it. Frankly, i expect better of Mona, and I expect better of this site.
Comment by Mona —
December 31, 2007 @ 2:54 pm
LarryM: Clearly I’ve hit some sort of nerve with you, but I do not believe what I wrote is in error, or even far off the mark of your comments/claims. I wrote this:
Comment by LarryM —
December 31, 2007 @ 3:29 pm
Mona,
Ah, I see. Less than mediocre lawyers withaltruisitc souls. Gee, how generous of you.
Yes, you’ve hit a nerve, and I’m baffled by why (a) you don’t seem to understand how the (somewhat condecending) bolded text doesn’t make up for the grossly inaccurate last phrase, and (b) why you are still sticking to your guns with regard to the last phrase. I mean, a simple “I could have phrased that better, and I relaize that what I wrote was exagerated” would do nicely. I mean, you are playing into a very common but destructive stereotype, which is one of the reasons why it is particularly annoying.
Let’s see if I can come up with a good analogy. Let’s say that a commenter here wrote something like the following: “you know, I really admire the sincere good heartedness of you “non-interventionists,” carrying on against great odds. It’s a shame that your movement attracts only naive and not too bright people.”
Now, i wouldn’t say that - I’m a non-interventionist myself - but if someone did, it might well strike a bit of a nerve with you.
But I guess the bottom line is that I do mostly respect your opinions, which is why it bugs me much more coming from you than from most people.
Comment by Mona —
December 31, 2007 @ 3:50 pm
LarryM: The purpose of my post is to highlight exactly what the title suggests, and which is true: those of modest or less means are at an overwhelming disadvantage if they become charged with a crime. Prosecutors have vast state resources at their disposal, and often attract smart career-climbers because high prosecution rates and sexy cases are a ticket to higher political office, or to a great offer in the private sector. (Rudy Giuliani wanted to be a U.S. Attorney, and knew exactly how useful a career move that was for a super smart, authoritarian such as himself.) PDs? Not so much.
My interest is not the tender sensibilities of lawyers who are or have been PDs — some of whom I have agreed are fine attorneys. My concern is with a grossly skewed criminal justice system in which, and among other things, the accused all too often is saddled with a defense attorney whose pay scale is not, other things being equal, going to attract a budding Clarence Darrow. (It would have attracted Darrow, tho, since he was one of the exceptions who was about justice, not $$.)
I advocate either paying PDs significantly more, or giving crim defs vouchers (hefty ones) to hire in the pvt sector. And giving them access to exactly the resources — paid for by the state — available to the prosecution. For the reasons I wrote of, and could go on about even further, the system is unjust except for the wealthy.
Comment by Thoreau —
December 31, 2007 @ 5:25 pm
Sometimes I wonder if the criminal justice system should just have one pool of lawyers on the state payroll, and they have to rotate back and forth between prosecution and public defender. And perhaps even let defendants take first pick from the state’s lawyers (unless they opt to pay for their own), and then the state decides which lawyer to assign to the prosecution.
This would fix the disparity in resources and talent between the two groups. It might also make both of them better at their jobs: In most lines of work, it’s beneficial to have some experience in the shoes of those you work with (customers, co-workers in different departments, subordinates, even suppliers, etc.).
Of course, I’m not a lawyer, so perhaps I’m underestimating the importance of specialization. Also, it may be that mingling those pools would create unacceptable relationships and conflicts of interest.
Any thoughts?
Comment by LarryM —
December 31, 2007 @ 5:34 pm
Yeah, I get the point of the post. It’s laudable. I’m happy that you would like to have public defenders paid more (the voucher idea, not so much; for complex reasons which I don’t have time to get into, this is an area where vouchers IMO wouldn’t work very well.) I said from the start that I agreed with most of it.
But that doesn’t excuse inaccuracies, or an astonishing defensiveness regarding said inaccuracies. Or a stubborn refusal to back off same.
Look, I’m sick and tired of people who, in order to make the (wholly legitimate) point that you are making, feel the need to take cheap and inaccurate shots at public defenders. You aren’t the first, you won’t be the last, but I think it’s necessary to give a corrective when confronted with this sort of crap.
Reading between the lines, it looks like your experience is with a jurisdiction that rely mostly, or even entirely, upon appointed private counsel. Those jurisdictions do, indeed, provide the best evidence to support your overall thesis. (And the low quality of some of those attorneys is, indeed, horifying.) If you had been exposed to one of the many jurisdictions with a quality public defenders’ office, you wouldn’t feel the need to take cheap shots at a group of incredibly dedicated and, yes, talented attorneys.
I was hoping to be able to pen a conciliatory response; after all, you and I are on the same side. But your tone, and your continued stubborn ignorance sadly makes such a response impossible.
Comment by LarryM —
December 31, 2007 @ 5:44 pm
To elaborate , and advance the ball forward a bit, at the risk of perhaps repeating myself, the scope of the problem does, as I said, vary tremendously from jurisdiction to jurisdiction. Really what needs to be addressed most urgently are the worst jurisdictions (disproportionately rural and/or southern). Unfortunately (and understandably) those jurisdictions tend to be the very places where politically change is most unlikely.
And ironically, what’s missing in the worst jurisdictons is a well funded, professional public defenders office. I’m not sure that bashing public defenders is the most effective way to change that dynamic.
Comment by LarryM —
December 31, 2007 @ 5:50 pm
http://www.deathpenaltyinfo.org/article.php?did=1014&scid=64
This, of course, in addition to supporting my point, also supports Mona’s main thesis. The level of funding for the homicide unit of the Philadelphia Defender Associations’s homice office is unusually high.
Comment by LarryM —
December 31, 2007 @ 6:06 pm
Also (and now I am being conciliatory), I think that in some respects I probably wasn’t aware (or, more acurately, had forgotten) just how unique my PD experience was. I mean, I knew that the place where I spent the majority of my PD career was an unusually good PD’s office, but I had forgotten just how much better than the norm. A couple of web searchs has refreshed my recollection.
Mind you, there are other quality Public Defender’s offices, but the Defender Association of Philadelphia is and was a bit atypical.
And, finally, even in Philadelphia PD resources could and should be higher.
Comment by Dave Woycechowsky —
December 31, 2007 @ 6:26 pm
Of course, I’m not a lawyer, so perhaps I’m underestimating the importance of specialization. Also, it may be that mingling those pools would create unacceptable relationships and conflicts of interest.
Any thoughts?
As you probably know, T., I have often suggested spending parity rules for criminal prosecutions at HnR, so it is nice to see you picking up the parity meme here. Sadly, I don’t think yr parity proposal would work. Mostly because the lawyers would work with the same cops on a repeat basis, but not the same defendants. That would skew them toward the prosecution. Just as in the area of scientific research, people end up responding to the subtle cues from the economically powerful players.
Comment by Dave Woycechowsky —
December 31, 2007 @ 6:28 pm
But your tone, and your continued stubborn ignorance sadly makes such a response impossible.
whatever you do, don’t get her going on strict liability.
Comment by Hektor Bim —
January 1, 2008 @ 10:42 am
So, Mona, you’re against tort reform and limiting awards to defendents then? Because, after all, corporations typically do have very expensive attorneys who can master criminal evidence, and poor defendents with a case often have recourse to only very poor counsel?
Comment by larrym —
January 1, 2008 @ 12:05 pm
Let me make an entirely seperate point, which hopefully won’t get obscured by my more specific disagreement with Mona. As much as Mona is absolutely correct about her larger point, and as much as there is a crying need for more resources for indigent defense, especially in some jurisdictions, the problem referenced in the Greenwald quote near the end of her post is entirely unrelated to the issue of indigent defense. We could quadruple the resources devoted to indigent defense, and it wouldn’t significantly reduce the huge number of people incarcerated for drug offenses. The problem there is bad laws - the war on drugs generally, and specifically draconian (usually mandatory) sentences for low level drug trafficking. And those laws are, for a variety of reasons, enforced unequally. But the problem here isn’t bad lawyering, or, ultimately even unequal enforcement. The underlying issue is the bad laws themselves.
(That being said, certainly there is a HUGE amount of hypocrisy involved when politicians who used drugs in their youth jump aboard the drug war train.)
And Greenwald also makes a common but annoying misstatement. The millions of people incarcerated for drug offenses are not in prison for the same offense - “buying and consuming illegal drugs” - committed by Bush, Obama, etc. Very few people are incarcerated for merely “buying and consuming” illegal drugs. The vast majority of the people incarcerated are incarcerated for selling drugs, and/or possessing the drugs in quantities that are clearly indicative of an intent to distribute the drugs to others. Our justice system makes many, many poor decisions regarding deployment of resources (the whole war on drugs being the biggest example), but they aren’t stupid enough to waste many resources (in terms of enforcement, prosecution, and incarceration) on users. People possessing small quantities of drugs are rarely incarcerated.
I don’t think that that excuses, or even begins to excuse, the war on drugs. There are plenty of people sucked in by the easy money of low level street dealing, in many cases financing their own habits, who wind up serving years in jail because of harsh mandatory sentences. But I don’t think that it helps the (very worthy) cause of legalization/decriminalization to pretend that the people who we are locking up are mere users.
(Now, it may be true - in fact probably is true - that my experience is slightly skewed by being from a large northeastern urban area - the truth is likely a little different in some other parts of the country - but on the whole, a tiny, tiny percentage of the people inacarcerated for drug offenses are incarcerated for merely using.)
Comment by larrym —
January 1, 2008 @ 1:55 pm
Here is an interesting study regarding the issue of minority versus white incarceration rates for drug offenses:
http://social.jrank.org/pages/1310/Drugs-Drugs-Convictions-Sentencing-Trends.html
I’m referencing it not so much for its ostensible subject matter, which is somewhat orthogonal to this thread, but for this interesting quote. The study lists the possible explanations for disparities, including:
“Lawyers? What about appointed versus privately-hired lawyers? Blacks were more likely to be represented by public defenders — 76.6% versus 69.0% for whites in 1997 in state courts. But publicly defended drug offenders did better than privately defended persons. They got lower sentences (97 versus 140 months) and were expected to serve less time before release (46 months versus 58 for those with the expensive lawyers).”
Comment by Mona —
January 1, 2008 @ 5:09 pm
Hektor Bim: So, Mona, you’re against tort reform and limiting awards to defendents then?
Not at all. I favor certain tort reform measures, as well as some caps on awards. Civil cases, however, are an entirely different matter than the criminal justice system. A poor person who has been severely harmed by a person or product can end up with one of the best attorneys available, because of the contingency fee system.
Comment by Mona —
January 1, 2008 @ 5:16 pm
LarryMthe problem referenced in the Greenwald quote near the end of her post is entirely unrelated to the issue of indigent defense.
Not at all. Rush Limbaugh never saw a day of prison. Others who seek large amounts of a drug, even pot — for medical reasons — can find themselves serving 25-year sentences.
Further, many if not most users at some point commit the crime of “dealing.” Buying and distributing the coke for one’s network of friends renders one a drug dealer.
While it is true that the average user busted with just a few joints is not going to end up in prison — at least not on the first go around — the line between user and dealer is not clear and bright in many instances.
But that said, I of course agree that no such persons should be at peril of prison regardless, but that is the law we have, not the one that is moral or practical.
Comment by LarryM —
January 1, 2008 @ 8:19 pm
Mona,
You just don’t give an inch, evidence be damned. That may bean effective debating tactic (well, not, probably not even that), but it isn’t very effective at arriving at the truth. Frankly I probably would have noticed that problem earlier if it was not for the fact that I usually agree with you on substance.
In any event, I wish I had the time to do this topic the justice that it deserves, but alas I don’t. So, briefly. Before addressing the specifics of your latest post, even were I to assume for a moment the truth of what you say, it really misses the big picture. There simply are very, very few “wealthy” (or even middle class) people arrested for dealing. They generally don’t deal (becuase they have many other options, and too much to lose), and when they do deal, they typically aren’t dealing on the street in poor neighborhoods(and are thus, for reasons of police resource allocation, not likely to be arrested). And let me tell you, on those rare occassions where people with money ARE arrested for dealing, they are often surprised to discover that they are facing substantial jail time, expensive attorneys or not. The fact is that the law tends to be very harsh on dealers, and not on users, regardless of economic circumstances. Is a “rich” person going be treated better? Possibly a little, though not as much as you would think.(In fact, there is actually a factor going the other way. Some judges, when they see someone accused of selling drugs with a high priced attorney, assume that they are paying for the attorney with money obtained from drug dealing, and treat them more harshly.) But any favorable treatment receieved by more economically fortunatel people has a lot to do with the fact that a person of some means and a middle or upper class background can usually present a much more sympathetic picture at sentencing (or to the DA in plea negotiations). (Now I find such differential treatment deplorable in its own way, but it’s not a function of counsel.)
Of course you are forced to grudgingly concede that “[w]hile it is true that the average user busted with just a few joints is not going to end up in prison— at least not on the first go around”. As I’m sure you know if you have much direct experience in this area, in fact it’s not just people who possess a “few joints,” it’s people who possess a small amount of any type of drug. And, especially in big cities, it remains true for second, and third, and fourth offenders. And so on. In 11 years of PD work I handled hundreds of mere possession cases, and I don’t recall any client got more than a few days in jail. And the vast majority not even that much. Heck, in the Bronx, for example, the majority of simple possession cases are pled out at the preliminary arraignment on a reduced charge of “disorderly conduct.” Or at least that was the case 8 years ago.
The people who got significant jail time, without exception, were people convicted of selling, or possessing an amount clearly indicative of an intent to sell. (Yeah, there were a few borderline cases on the last point. And they enraged me on an individual basis. But in the grand scheme of things, those types of cases are a tiny portion of the people incarcerated).
As for the “facts” that you offer, let’s start with the claim that “many if not most users at some point commit the crime of “dealing.” Now, that isn’t true, though I’ll concede that some (fewer than you might think) mere users do end up technically “dealing” in just the way that you describe. But the very nature of that type of “dealing” (done in private with people you knw and trust, i.e., not an undercoverplocie officer) is such that people (poor, rich, whatever) are rarely arrested for it. So we are back to the simple fact that the vast majority of people in jail for drug offenses are sellers.
In terms of differential treatment, the only “evidence” that you advance is Limbaugh. Now, even if we assume for argument’ sake the truth of that (and I don’t think it was that simple for reasons which I don’t have time to get into), the plural of anecdote is not, contrary to popular belief, evidence.
Finally, let me ask you the bottom line question. Do you honestly think that substantially increasing the resources devoted to indigent defense, as worthy a cause that that is, would significantly decrease the number of people incarcerated for drug offenses? If you can honestly answer that question yes, then … well, I’ll be polite and simply say that you have a lot to learn. The only way to significantly address THAT problem is to change the drug laws.
Comment by Mona —
January 1, 2008 @ 8:35 pm
LarryM, this is just one example of why I find you so officious and annoying: Of course you are forced to grudgingly concede that “[w]hile it is true that the average user busted with just a few joints is not going to end up in prison— at least not on the first go around”.
That is not something I “grudgingly concede.” Rather, it is a point I have been insisting on for, oh, better than a decade, BUT ALSO stating that because of the various state and federal statutes involved in the WoD, many users will, at least occasionally, operate as dealers or within the apparatus of the trade network.
Then there was your accusation I had called all PD’s bad lawyers, and when I pointed in bold to my statement clearly saying otherwise in my post, you didn’t agree I had not said what you had claimed; no, then you decided I was “condescending.”
You argue there is no relationship between my post and Greenwald’s comments. Did you notice that row of asterisks I inserted in my post before that quote? Do you think it might have indicated a tangential point change, or one of focus? I guess not.
Do I think rich people committing drug felonies are treated better than poor ones? Again, yes. See Limbaugh, Rush.
Comment by Mona —
January 1, 2008 @ 8:42 pm
Finally, Larry, If you wish to learn the sorts of views and positions I have taken about the WoD and prison over many years, you could read this guest post I wrote (under the pseudonym “Hyaptia”) at Greenwald’s pre-Salon blog.
Comment by LarryM —
January 1, 2008 @ 8:51 pm
Mona,
The problem, here, isn’t my being “officious and annoying.” The problem is your stubborn refusal to back down from a few sloppy and inaccurate statements contained in an otherwise good post. Setting aside the Greenwald issue, where you really haven’t responded to my last reply (to the extent that you did, aside from the fact that one case is a pretty thin reed to rely upon, I’d note that I agreed regarding disparate treatment, albeit not NEARLY to the extent that you assert sans evidence; my point was that it is not primarily a function of counsel), the simple fact is that I never said that you called all PDs bad lawyers. Rather, you explicitly claimed that they are “usual[ly]” less than “mediocre” lawyers. The fact that you praised some of them (some of the few PDs that, in your opinion, are mediocre or even better) doesn’t take away from that fact.
And, after hundreds of words and several responses, we are still at the same point. You have stood your ground regarding your claim. That claim is insulting and inaccurate, and I called you on it.
The real irony here is that the only reply of mine in this thread that I regret was my attempt to be conciliatory, which, in retrospect, was itself overly dismissive of the many, many fine public defender offices in the nation.
Comment by LarryM —
January 1, 2008 @ 9:01 pm
And as for your follow-up post, Mona, I have no doubt that you have been fighting the good fight for quite some time; I never said or implied otherwise. I just don’t think that the fact that I agree with a person about the big things means that I should give them a pass when they make mistakes.
And I assumed that we were in agreement on larger drug war issues as well (as I am with Greenwald). I just don’t think (and this is directed much more at Greenwald than at you, as it was when I first brought it up) that it serves the cause to mischaracterize the nature of the drug offenses for which the vast majority of the people incarcerated for drug offenses were convicted. I don’t think that you and I really disagree much at all on that point, but the quoted Greenwald post was wildly inaccurate in that respect. (And in all likelihood he knows the truth as well, but he, like most of us, is capable of gettign carried away with his rhetoric sometimes).
Comment by Mona —
January 1, 2008 @ 9:55 pm
Larry: Those are not even Greenwald’s words you are taking issue with; he is quoting Matt Stoller. In any event, while I don’t know exactly how many busted for use end up sentenced for a time to the county jail (and Stoller said jail, not prison) — it could well be a million. And his point about prison incarceration rates overall due to the WoD is true. Stoller could have made the point more clearly if he had spoken of jail v. prison, and I agree that dealers are the ones likely to end up in prison. But then, many users are dealers.
But Greewald’s actual own words fit exactly my thesis, as when he wrote (and I quoted):
Greenwald’s only minor error is to use the word jail there, when he means prison.
Comment by larrym —
January 1, 2008 @ 10:31 pm
Mona,
Greenwald uses the Stoller quote in a way that clearly states that he agrees with it. Yes, I guess I could have been more precise in my criticism of him (by indicating that the language that I was responding to came from Stoller originally). But that’s a quibble. The quote - Stoller by way of Greenwald - isn’t just a little wrong, it’s a lot wrong, and it’s a bit depressing to see you fail to acknowledge that the quote is(to bend over backwards to be fair) quite deceptive.
As to your other point, overall statistics regarding incarceration numbers for people who have been convicted of mere possession are surprisingly hard to come by, but if my own experience is anything to judge by, the jail/prison distinction really doesn’t make a significant difference. While it is certainly true that those few people incarcerated for mere possession are much more likely to be in jail than in prison, the point here is “few.” No matter how one parses things, the simple fact is that, by and large, jail or prison, we simply do not, as a society, incarcerate mere users. Some people think that obscuring that point will advance the cause of decriminalization/legalization; I don’t.
I mean, let me put it this way. The Stoller quote says (not implies, straight out says) that there are 1 million people incarcerated for “buying and consuming illegal drugs.” Unless Pennsylvania and New York are WILDLY atypical, he is off by at least two orders of magnitude.
Comment by Mona —
January 2, 2008 @ 12:13 am
Larry, I don’t think Stoller’s quote is deceptive, he just doesn’t have that good a grasp of the drug war and the jail/prison distinction. But people do get busted for possession ALL THE TIME, and spend at least some time in county lock-up. You yourself concede figures for that are hard to come by, but based on experience in my neck of the woods I’m prepared to believe a million is quite probable.
Do I think Glenn should have been more careful in making a distinction that I know he is aware of? Yeah, but that wasn’t central to HIS POINT. His point is who gets time in America and who doesn’t, and how the system is stacked against the poor. Among the reasons I know he is aware of this distinction (aside from the fact that he has said so to me when we’ve discussed drug policy), is because he just completed research for a Cato paper on decriminalization in Portugal which focuses on how users are treated — they are not brought into the criminal justice system at all, contrary to the U.S. I’ve asked him via email a few times how they handle the “dealer” issue, especially since users so often deal — but my question seems to have gotten lost in the other stuff we were discussing. (He announced his work on this study already in his comments section, so I am free to talk about it as well.)
Undertaking this study has relit the fire in his belly about the WoD, and he wants to see it more aggressively discussed at “progressive” sites. Stoller’s post pleased him for that reason. It had nothing to do with an intent to deceive.
Comment by LarryM —
January 2, 2008 @ 1:07 am
I dodn’t (and didn’t) think that he intended to decieve (and I didn’t say that he did). I do think that many people who don’t have expertise/personal experience in the area, and read statements like the one in question, end up with a distorted perception of the nature of the problem. And I think that that ends up hurting, not helping the cause.
Look, we are a sadly long distance from making significant progress in ending the drug war, and I doubt that slightly different (and more accurate) rhetorical strategies are going to make a huge diffference. But it just seems to me that the real horrors of the drug war are bad enough; there is no need to gild the lily, so to speak.
I want to end this exchange, though, on a positive note with regard to the point of your original post. Improving resources for indigent defense may not (probably will not) make much of a difference in terms of the systemic problem of high incarceration rates for drug offenses. But it will have a huge effect in other areas, especially in capital defense and for all types of cases in areas where lack of resources is a particularly acute problem. And, with regard to drug cases, while better resources aren’t a solution to the systemic problem, they certainly would help many specific individuals.
Comment by Mona —
January 2, 2008 @ 8:46 am
Larry: I really think we agree on the point of my post, and consider it unfortunate that the whole discussion got side-tracked by the PD and drug offender/incarceration issues.
I would also like to note that you are 100% correct that criminal defendnats ought to be allowed to introduce expert testimony on the well-demonstrated unreliability of eye-witness testimony.
Like most lawyers, I imagine you, too, want to pull your hair out when some glibly say that the outcome of this or that criminal trial was due to all the evidence being “only” circumstantial. When proper forensics are deployed, an eyewitness who is “sure” he saw John Doe fleeing from a raped and murdered child’s body in the alley, simply SHOULD gave way to hair samples, DNA testing, blood typing & etc.
Comment by Mona —
January 2, 2008 @ 8:47 am
And P.S.: I fixed the link to my WoD post at Greenwald’s blog. It had not worked before, but does now.
Comment by Reginald Fagan —
January 2, 2008 @ 9:34 am
For all types of cases in areas where lack of resources is a particularly acute problem:
Injured workers are being destroyed by lack of zealous representation nationally. Insurance companies and corrupted prosecutors are collaborating to destroy taxpayers who have become injured. I live in a rural county; San Luis Obispo, California where there is no dedicated public defender office. Instead the county contracts with private law firms.
I am an injured worker who has never received any workers comp benefits. I have been receiving Social Security for the past four years. Thousands of injured workers who do not have resources are forced on to public services. I am slated for a knee replacement. There are well over 40 doctors who have confirmed my injuries I have had a series of tests: MRI, Nerve Conduction, X-Rays and more.
But due to poor lawyering & a District Attorney’s Office who has run-up a tab for well over $100,000. He has openly abused his privileges by violating my privacy and falsifying evidence. On January 7, 2008 I will be sentenced to prison for two years.
Workers comp laws are governed by states, in most cases the systems do not work for injured taxpayers. The workers comp system is broken nationally. Prosecution for profit; so many state laws have been set up primarily to target injured workers.
There needs to be an intensive focus on workers comp fraud laws (Criminal law). There is a need for reform. Injured workers do not have monies to hire the specialized attorneys needed to win these types of fraud cases. Most public defenders do not have the necessary background in workers comp law. My story is one of thousands. Injured workers are not receiving zealous legal representation.
It is good that the discussion covered the area of unfair drug laws. But, there needs to be more dialogue on the topic of unfair workers comp fraud laws and the effects on injured workers!
Comment by larrym —
January 2, 2008 @ 11:44 am
mona,
Yeah, no doubt we are on the same side on most of this. The PD comment did strike a nerve with me; you have no idea the lack of respect that PDs face. Actually I had it better than most, as the judges, prosecutors, private bar and the savvier clients in Philadelphia were well aware of the fine job that the PD’s office did there. But none of this detracts from your main point; the state of indigent defense is, in many areas, appalling, and it is often an unequal battle even in those jurisdictions where resources are … less inadequate.
And the Greenwald/Stoller comment struck a lesser nerve. But it is, indeed, important to keep in mind that, even without significant jail time in most cases, users do face arrest, short jail stays, and getting a criminal record, all of which are bad enough. Not to mention the far worse penalties suffered by low level dealers, and the generally corrosive effect that prohibition has in poor communities. I could go on, but I am preaching to the choir I suspect.
One side note on disparate treatment. I alluded to this above, but I suspect that the biggest reason for such disparate treatment is policing decisions. For reason which are understandable, drug enforcement resources are devoted on a wildly disproportionate basis to poorer neighborhoods. Understandable, yes, but not justified. Ultimately, though, the answer isn’t to make enforcement more equitable, but to repeal the laws. Of course, if enforcement WERE made more equitable, my guess is that there would be dramatically more support for real reform.