Justice or Just a Trial? Mandatory minimums, the Attorney General and changing the system

This post contains high levels of drugs, crime, and lawyers. What we may be missing is quite enough justice…

Statue of Lady Justice

How often do we hear the words of the Miranda Warning, You have the right to remain silent; you have the right to an attorney in our favorite cop shows?  Usually, that’s where the show ends. And yet the real story is only beginning. 

I admit I really don’t spend much time thinking about criminals or lawyers, except to avoid them.  So when Attorney General Holder gave a speech to the American Bar Association  last month about how we send people to prison, saying that “as a nation, we are coldly efficient” at putting people in prison and that “we must face the reality that, as it stands, our system is in too many respects broken”, I had only a vague idea of what he was talking about. Turns out it is all about numbers: The number of prisoners, the number of years they are in prison, the number of cases that public defenders have, and the money we spend as a nation.  The forces at play?  Mandatory minimum sentencing and the 6th amendment’s right to an attorney.

The right to an attorney can be found in the Bill of Rights. Our modern idea of it is from the case Gideon vs. Wainright:  When Clarence Gideon was tried for stealing $55 dollars and breaking into a pool hall the State of Florida told him they didn’t have to give him an attorney.  He was sent to prison for a crime he didn’t commit and used that time to change the legal system

Mandatory minimum sentencing says there are crimes people shouldn’t serve less than a set amount of time for.  They aren’t new- the minimum sentence for the killing a meat inspector was set in 1907- life in prison or the death sentence.  (That's the year after Upton Sinclair’s The Jungle was published.)  Then in the mid 80s and 90s sentences were set for a wide range of drug crimes.  The effect?  The U.S. now has the highest prison population in the world, but not in any equal sort of way, and we spend huge amounts of money ($80 billion in 2010) locking people up.  

Sing-Sing Prison in the early 20th century

When people are sent to prison for set amounts of time no matter the situation, things just get weird.  And don’t let me forget the Cooperation Paradox: the more involved you are in a criminal enterprise, the more information you have to bargain with- meaning that the criminals who are the guiltiest get the lighter sentences.  

So, two very different parts of the legal system.  What happens when they collide? Nothing good.  There are too many people in the system for the number of public defenders.  Many people never actually see their lawyer- or a trial.  In a wonderful if curse laden interview by John Oliver with the director of the documentary “Gideon’s Army” Dawn Porter they explain better than I ever could

Steve Edgar, Prison number 21655

So let’s head back to where we started: Holder’s speech for the Smart on Crime Initiative.  The gist of the initiative is that by focusing on prosecuting the most serious of criminals and not snaring everyone else in mandatory minimum sentencing crimes, the Department of Justice will be able spend money and effort elsewhere, saving people from the system and the system from the burden of all those people.  It’s pragmatic and surprisingly readable.  Changing the laws will literally take an Act of Congress, but the U.S. Attorneys can choose how to charge people.  Will it work?  I can’t tell you that.  I’m a librarian not a seer.  But we can hope for the best.

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