What happens when you throw a wrench in into the gears? The machine stops working! The criminal justice system we have is a machine. The police over police impoverished and minority areas. Prosecutors charge the suspects under laws that criminalize addictions. Then the judges set unreasonable bonds. Finally, most poor defendants are given court appointed lawyers, and about 90% of the time, defendants plead.
When I was at Gideon’s Promise Summer Institute we heard from a man that is revolutionizing the criminal justice system in North Carolina that suggested taking just 5% more of our cases to trial would crash the system. Sean Maher, the former Bronx Public Defender ingrained a saying our minds “Take That Shit To Trial. Take That Shit To Trial.” Now we have Michelle Alexander, one of the foremost experts on the civil rights problem of mass incarceration joining the crowd. The time is now. The time is now to put a wrench into the gears of the criminal justice system.
Before we can do that, there needs to be a few major changes. First, judges need to set reasonable bond. Here in Harris County, there is a standard bond schedule, and we as lawyers need to make sure it is followed. I get sick when I speak to a potential client who has a $30,000 bond for his first offense, when the schedule says his bond must be set at $5,000. Second, there needs to be a statistical analysis of every lawyer who takes court appointments. What does their record look like? Is Lawyer A feeding the plea mill as if the mill needed a plea to stay alive? What percentage of Lawyer A’s clients are pleading on their first setting? The plea mill lawyers needed to be weeded out. Once that happens, defendants will start to gain confidence and respect for their court appointed lawyers. Third, prosecutor’s need to cut out the “first offer, one day only” crap, as if they are furniture salesmen. First, it puts me in an ethical dilemma as as a defense lawyer, because I have an obligation to conduct an independent investigation, and I have no ability to do that after only briefly looking at an offense report shown to me moment before the offer. Second, a decision to plea, even a decision to plea time serviced and a $400.00 fine on a misdemeanor possession of marijuana charge can have life-lasting effects.
My motto is “Client Centered | Trial Ready.” I want my clients to know that if I take their case, I will be ready to take it to trial. I expect my clients to take their cases to trial. I am bitterly disappointed when they take a plea offer. We should all be client centered. As lawyers, it is our duty to inform clients, appointed and retained, of what the process looks like and the consequences of every potential play. I understand that most defendants want to plea guilty, do their days-months-years, and move on with their lives. Its time for this generation of lawyers; its time for this generation of (non) citizens accused to challenge the system. We can break the system. We will break the system. Before long, the police, courts, prosecutors and legislatures will reevaluate and change their practices. We will end Mass Incarceration.