On Carrying Pictures of Chairman Mao

Jamison KoehlerCriminal Procedure, Law Practice

For the most part, the Assistant U.S. Attorneys here in D.C. seem to have things right. For one thing, they return your phone calls, usually on the same day, and I have to give them credit for that. For another, they don’t seem to sweat the small stuff. They seem to understand that many people are arrested for no reason other than they had the bad fortune to run into a prickly, authority-obsessed cop or a vindictive complaining witness who knows enough to be the first person to call 911. They listened to their mothers when their mothers told them there are always two sides to a story. And they seem to get the fact that a misdemeanor is a small offense that doesn’t always justify the expenditure of government resources to prosecute.

This is in marked contrast to my experience with prosecutors in Philadelphia. Although, in fairness, I should say that my experience in Philadelphia is now a couple of years old and things may have changed somewhat under a new mayor, Michael Nutter, and a new District Attorney, Seth Williams, I have a very low opinion of the prosecutors in that city.

Any offense, no matter how minor, seemed to be worthy of their time and attention; any case, no matter how flawed, worthy of pursuit. The result was a completely clogged court docket with often months between listings. Prisons were overflowing at the seams, with three inmates assigned to cells designed for two. If I am going to be found guilty, a client told me once, make sure my sentence is longer than 2 years. I’d rather spend more time in a state institution than any time in a Philly prison.

Sometimes a defendant in custody awaiting a preliminary hearing would be left off the “bring down” list from the prison. The judge would grumble and the sheriff would look sheepish and apologize:  Oopsie. Our mistake. But that didn’t stop the court from setting another date on the “expedited” calendar 6 to 8 weeks down the pike. An additional six to eight weeks in custody because some numbskull made a clerical error.

Well, the prosecutor would say, at least your client will be earning time credit. Yes, you agree, if he is found guilty, I am sure he will take some consolation in knowing he has already served some of that time. But what about the cases in which the defendant is ultimately acquitted? Is there a system in place by which he can “bank” this time to be applied toward a future crime?

Most judges could be talked into lowering bail for a client who was not brought down, but this didn’t have any effect for defendants who were either held on detainers or for whom $500 bail was just as likely to keep them in custody as $1 million bail.  And even then most of the prosecutors would stamp their feet and object:  “But Your Honor!”

So what’s the difference between the Assistant U.S. Attorneys here in DC and the city prosecutors in Philadelphia?  For one thing, there is the matter of age and experience. Eager to build a reputation for themselves, most of the prosecutors in Philadelphia come to the district attorney’s office directly out of law school. Federal prosecutors tend to have worked a while first, often at big firms, and their short stint doing misdemeanors in D.C. Superior Court is just a stepping stone before they rotate on to more important matters.  It is snobby of me to say this, particularly since I myself did not go to a top-10 law school, but the federal prosecutors also tend to have much better credentials. Finally, they seem to have a better perspective on things. Perhaps due to their greater life experience, they are able to differentiate between what is important and what is not.

With the system bulging at the seams because of overzealous prosecutors, there has been some talk recently in the blawgosphere about a revolution to rectify the problems. Expressing a growing sense of frustration, Rick Horowitz says that he would support a revolution – because revolution is sorely needed – so long as the revolution could be achieved without hurting people.  He hasn’t figured out, he writes, how to “hate the sin, without hating the sinners,” and by sinners he is referring to people who work for the government.

In a reflective and unusually personal piece, Scott Greenfield takes a more measured approach. Using the metaphor of his wife going outside in a heavy snow storm to shovel the walk, only to have wind and continued snow render her efforts completely futile, Greenfield appreciates Horowitz’ frustration.  At the same time, he seems to suggest a more incremental approach to achieving the necessary changes. Sometimes, he writes with an air of resignation, we need to “let go of things we can’t change or control, despite our desire to seize control of our world and make a difference.”

Writes Greenfield: “One of the things that contributes to this sense of hopelessness is the constant bombardment of bad things we endure at the hand of what’s supposed to be a benign government. Some become hyper-radicalized by knowing too much about the bad, where we begin to get the sense that the blizzard will never end. In almost 30 years, I’ve seen more than my share of bad things happen in our system. There has also been plenty of good.”

While allowing Horowitz a little hyperbole, my views on a possible revolution are closer to Greenfield’s. To paraphrase Benjamin Franklin on democracy, our court system is the worst in the world except for every other. Or to use something more recent, from John Lennon:  “If you go carrying pictures of Chairman Mao, you ain’t going to make it with anyone anyhow.”

Horowitz and Greenfield are both right that changes are needed, and this is where the approach taken by federal prosecutors in D.C. Superior Court could be instructive. You can prosecute every case regardless of severity or merit.  Or you can do triage. You can acknowledge that some cases just aren’t worth the effort.

The “post and forfeit” approach used in D.C. is one way to reduce stress on the system. (That approach, already covered by Greenfield, will have to be the subject of a separate blog entry.)

Another possibility would be to improve the terms of non-trial diversion programs for misdemeanors. The U.S. Attorney’s office in D.C. currently uses deferred sentencing agreements (DSAs) for many misdemeanor offenses, including simple assault and driving while intoxicated. Under this arrangement, the defendant pleads guilty to the offense and is then allowed to withdraw the guilty plea after meeting an agreed upon set of conditions. The government then dismisses the charges.

Assuming that the defendant completes the conditions successfully, the prosecutors argue that the DSA should have the same practical effect on the defendant as an arrangement in which the defendant doesn’t have to plead guilty to enter into the program. There are, however, two problems with this argument. First, it is very difficult for a defendant to plead guilty to something he didn’t do. Second, both immigration and motor vehicle authorities consider the DSA to be the equivalent of a guilty plea. In other words, although the government can still extract the same pound of flesh from the defendant through a deferred prosecution agreement, the collateral consequences for the defendant can be very different.

Another solution would be to stop overcharging offenses. The defendant mouths off to a police officer: disorderly conduct and resisting arrest. He gets into a dispute with a cab driver about a fare and refuses to pay him:  simple assault and theft. He has too much to drink and refuses to leave a hotel lobby or restaurant:  drunk in public and unlawful entry. And so on. These are not things we want to condone or encourage. But hours and hours of court-time and thousands of dollars in government resources to prosecute them?

Even if the defendant is completely guilty of the offense, being arrested and having to spend the night in jail and then having to hire a lawyer and take off work for three or four court hearings is often far more punishment than the offense warrants anyway. Federal prosecutors will often acknowledge this; city or county prosecutors, in my experience, much less so. There is usually talk about some poor victim, the complaining witness, who they know very well has no plans of ever showing up for court.  Instead of calling it “nolle prosequi,” the “defendant has suffered enough” would provide a great way to describe the true effects of the arrest and charges on the defendant without invoking the protections of the double jeopardy clause.

The final suggestion, as recommended by a 2009 study carried out at the Seattle University School of Law, would be to treat many petty, nonviolent misdemeanors  not as crimes but as infractions, a change which the study held could save “untold millions of dollars and better protect defendants’ rights without cost to public safety.”  The study concluded, for example, that the number of misdemeanor cases in court could be cut 30 percent a year in Washington State just by eliminating criminal prosecution of third-degree driving with a suspended license.  It estimated that, by “diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year.”

Said John Wesley Hall, Jr., one of the study’s authors, misdemeanor court “is a black hole for justice and resources.  I don’t think there is a bigger waste of human potential and taxpayer money in the entire criminal justice system.” The other author, Robert Boruchowitz, suggested that most of the changes could be effected without regulatory or statutory change simply by having prosecutors exercise more discretion in deciding which cases to pursue.

In addition to cutting costs and reducing the backlog of cases in D.C., such a change could have the added benefit of putting me out of business. While I get my practice off of the ground, I seem to spend an inordinate amount of my time representing people charged with such minor offenses. Making these changes would force me to earn an honest living representing people charged with real offenses, the ones worthy of our government’s scarce personnel and resources.

The alternative to solving the problem could be that you are left dealing with hot-headed revolutionaries like Chairman Mao. Or, worse, Rick Horowitz. And, believe me, you don’t want to get that guy mad.