I just worked a case that reminded me how chillingly divorced from reality the criminal justice system can be. The judge thought he was doing a defendant a favor by reducing his sentence from 22 to 18 years on the ground that his brother, the ringleader, had received only 10 years from another judge. As if eighteen years were a modest inconvenience; as if families and friends – forget the defendant – wouldn’t be forever affected.
Sometimes you get lulled into taking the “justice” in “criminal justice” at face value, into believing in the omniscience of a system that convicts the guilty and frees the innocent, that hands down sentences the guilty deserve. More or less. Then something like this shocks some truth into you.
And the worst part is how clinically this random cruelty is meted out. It has gotten so that sentencing the convicted to incarceration has become just another item on judges’ “to do” lists: “10 a.m. — pick up laundry; 11a.m. — get haircut; 12.10 p.m. — give defendant 18 years; 1 p.m. — meet friends for lunch.” What is truly distressing is that severe punishment is not by any means the preserve of the very worst offenders. It is just as likely to be imposed on people who are not venal at all and pose no threat to society. The harshest sentences are dished out to the least informed, most helpless defendants with disproportionate regularity. Unwilling to accept a plea and face the prospect of serious jail time, they put themselves at risk of far longer terms, And get them!
As an attorney – as a defendant – you need to handle a case with a fine tactical touch that has little to do with justice just to avoid a potential eight or ten years, say (no picnic by anyone’s standards), turning into eighteen or twenty.
Most accused have no notion of how things operate here in New York. The Eastern District is tough, but the system in the Southern District can be almost whimsically vindictive. In the EDNY, prosecutors have at least some discretion to fashion a sentence that promotes respect for the law without consigning the convicted to an eternity behind bars. Not so in the Southern District. There, prosecutors prosecute the case rather than the individual. Whatever the guidelines indicate is the appropriate sentence is what they are committed to the accused receiving. They think of themselves as We and defendants as impersonal They’s. If you don’t take a plea, and lose at trial, you are liable to get hit with an amount of additional time you won’t believe. You are not just going to get an increment for the “offense” of not accepting a plea — you are going to get double time, or even triple time. You are going to get leveraged, so to speak, from a range that you can hope to live with, and eventually move on from, to one that will utterly destroy your life and that of everyone to whom you mean something.