A Reluctant Call for Mercy Killing: This Lawyer’s Opinion

The time has come for the criminal defense community to rethink its well-rehearsed response to the following question:

What would happen if every defendant who wanted a trial got one?

Michelle Alexander at the New York Times posed this question in 2012…or more accurately, Ms. Alexander interviewed a former defendant named Susan Burton, and it was Ms. Burton who posed this question. Ms. Burton had served multiple jail terms for drug related offenses. Each time, she got out by accepting the prosecuting attorney’s plea bargain. Each time she got out after serving the sentence she agreed to serve, the state released her back into the under-served, over-policed neighborhood from whence she came. Her status as a convicted felon barred her from job and housing options, and her freedom lasted only as long as it took for the police to find another reason to drag her back in.

Ms. Burton’s story is too common. The criminal court system in the United States jails a larger fraction of its citizens than does any other system in the world. The numbers of imprisoned African American men are the most shocking and shameful; the United States jails more people than were jailed in the Soviet Union during the heyday of Stalinism, and the United States jails a greater percent of its African American men than the percent of Soviet citizens held in the gulag.

Ms. Burton’s question strikes the beast in its one weak spot; the people who promote this mass brutality don’t want it badly enough to pay for it.

Before the federal courts intervened, California’s prisons were stuffed to 175% of their designed capacity. The state later passed several laws designed to reduce the swelling: California’s infamous Three Strikes law now only applies to those whose “third strike” is serious or violent, prisoners can serve their time for property and drug crimes in local jails instead of state prisons, and simple possession of any drug is now a misdemeanor. These reforms came not because California suddenly realized that narcotics had long since won the War on Drugs or that all life was too valuable to take from someone for just any felony; they came because California had neither the money to build more prisons nor the stomach to raise taxes for that purpose..

California’s death penalty will likely share the same fate; Judge Cormac Carney ruled in 2014 that California’s death penalty was unconstitutional because the state did not provide enough funds to hire competent defense counsel who would “exhaust” all of the appellate options for the condemned so that he could be executed. There were no appeals to the inherent worth of every human life, even ones who have taken other lives from us, and California was not overcome with the shame that should come from being among the last regimes in the industrialized world that practices capital punishment. California still wants to kill people, just not enough to pay for the due process that must come beforehand.

At the trial court level, more than 90% of all criminal cases resolve by plea bargain and not by trial. As Ms. Burton pointed out: if every defendant demanded a speedy trial, the courts would collapse under the weight of all those rights happening at once. Cases would be dismissed for lack of court resources and the regime of mass incarceration would become too expensive for the courts to bear. So what would happen if every defendant who wanted a trial received one?

I posed this question on social media (on Twitter @normdeguerreesq): if bringing the system to its knees is in our clients’ best interest, why aren’t we doing it? This got a little bit of attention, but the response makes me think that the question wasn’t interpreted the way I had intended. Mark Draughn at Windy Pundit and Mark Bennett at Defending People wrote answers to a slightly different question: why don’t we just take every case to trial so that the system buckles under the pressure? Both writers responded with the same answer that every young public defender hears from her supervisor when she daydreams aloud about using her massive stack of case files to bring the system to its knees by trying every case.

Both Mr. Draughn and Mr. Bennett seem to interpret my tweets as though I had suggested that every defendant should choose to go to jury trial. Such a tactic would most certainly be unethical if recommended to all defendants regardless of their individual situations. Ethically, a lawyer is bound to pursue the best interests of each individual client and not her clients as a population. There are some philosophical discussions to be had about whether or not the interests of the many would actually benefit the interests of the few, but this is not a conversation for boots-on-the-ground lawyers like myself and it is most certainly not a call to action I advocate. The defendants who will be hurt with a stiffer sentence after trial should be encouraged to plea, as should those who – for whatever reason – are being offered a sweet deal by the DA. I use my experience as a PD to advise my clients whether or not a deal is worth taking.

However, I am not asking whether we should encourage every defendant to go to trial. I am asking, what would happen if every defendant who wants a trial got one? The difference between these two questions is subtle but important.

To answer this question, the lawyer must accept that being a defendant’s attorney entails being his voice of reason behind closed doors and the voice of his client’s best interest in the courtroom. Despite the histories of poor choices that often land a client’s file on our desks, the decision of whether she wants a trial is hers and hers alone, and that choice must be respected so long as the lawyer has shared his honest, candid professional opinion about the merits of any plea deal and the risks of going to trial. If there is a concern regarding client’s competence to stand trial, that decision is referred to medical doctors and judges. So long as my client is competent, as her lawyer, I treat her that way.

Too many lawyers can’t bring themselves to honor a client’s decision with which they disagree. I have heard public defenders and private lawyers yell at their clients in the courthouse hallways and berate them for not accepting their plea bargains. These lawyers win their guilty pleas, but not because the plea bargain was that much better than the likely post-trial sentence and certainly not because the client has finally accepted his lawyer’s wisdom. These clients still want a trial but no longer believe that their lawyers will actually fight for them. It is this situation I am speaking to.

For every client who wants a trial to get one, the defense bar will have to remind themselves that their clients are the ultimate masters of their own fates. The attorneys who fear trial for whatever reason will have to grow a spine and polish their skills or otherwise find a new line of work. The charred and crispy public defenders who have been doing their jobs for too long to try cases will need to step aside, take their pensions, and make room for new blood.

Finally, and most importantly, we must remind ourselves that Constitutional rights have value, and they should not be surrendered unless the accused is being offered something of comparable value. We need to remind ourselves this when we are tempted to tell a client to plea simply because he is guilty. A client’s guilt is largely irrelevant to whether a plea bargain is in his best interest; what matters is whether the state can prove it and whether the proposed plea is lower than the likely post-trial outcome. If the answer to either question is “no,” then the client’s case should be tried.

Frankly, many lawyers need to recalibrate their sense of whether a plea bargain is actually worth taking. Ms. Alexander’s article has a particularly vivid example of a plea bargain that probably looked more attractive than a trial…at first:

Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

Too many lawyers toss aside their client’s misgivings about their plea bargains. “Yet another example of my client’s bad decision making,” they may tell themselves. These lawyers need to remember that unlike their clients, they themselves have never had to live with the consequences of a plea bargain. Probation is no “bargain” if the client cannot or will not jump through the many hoops that come with it. A plea for a short prison term might end up doubling or tripling the client’s next prison term; lawyers may be selling a life sentence on an installment plan. Millions of defendants and their lawyers continue to cooperate with mass incarceration by surrendering their rights, but this amiable cooperation has lead to record numbers of people serving record numbers of years in prison. This tells me that most defense lawyers have been very, very wrong about whether plea bargains are worth taking.

As Ms. Alexander’s article points out, not every defendant needs to go to trial for sparks and flames to fly from the joints of the mass incarceration machine; I believe that the system is so underfunded that defense lawyers could collapse it simply by providing their clients the information and confidence to make their own informed choice and then honoring that choice. What could possibly be controversial or unethical about that?

Many of my peers continue to wring their hands and fret at the idea of making social change through individual representation. “If the police are running amok and if the laws are unjust, then they must be reformed and rebuilt,” these lawyers might say. These lawyers, like Cicero in the days of the old Roman republic, believe that appeals to mercy, decency, and reason will bring out the best in their fellow citizens; justice and reform are just one long dialogue away. But I believe that every institution works they way it does because someone benefits from the status quo, and that someone is most likely in power and will resist any efforts at change. Stabbing the monster in its one weak spot and starving it of resources remains the best tactic; this is why generations of new public defenders continue to ask, what would happen if every client who wanted a trial got one?

Respectfully Submitted,

Norm DeGuerre

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7 comments on “A Reluctant Call for Mercy Killing: This Lawyer’s Opinion

  1. shg says:

    In 2012, when Michelle Alexander’s op-ed was published, we went around this issue for, perhaps, the third or fourth time. Her claim that Susan Burton’s question was an epiphany seems more like a rhetorical device than true, as this argument has been making the rounds of criminal defense for decades. It’s nothing new.

    The question raised in this post is a little different than it appeared on twitter, but it too has been discussed. Yeah, it’s hard to have a new idea these days. No one disagrees with your premise that far too many lawyers manipulate defendants into copping out when they should go to trial. No one disagrees that far too many do so because they either don’t have the guts for trial or over money issues (not your problem, but a problem for retained counsel). No one disagrees that this is wrong. If trial is the right course, then trial it should be.

    But that doesn’t address the “crash the system” piece of the solution. The most likely answer is that if most lawyers started trying cases that should be tried, the system would somehow accommodate it, and most likely to the defendants’ detriment. Ramming trials through in hours that should take days. Cutting corners wherever possible. Voir dire in minutes instead of days. Right down the line.

    At first, it might cause serious disruption to the system, piling up cases, but the system isn’t inclined to let itself be crushed. If something has to give, it’s far more likely it will be the rights of defendants and our ability to have the time and resources to try the case.

    Sure, there may be a need for more judges, more courtrooms, more resources, that government isn’t willing to put into the system. But consider the law of unintended consequences and the reaction of government to untenable problems. Even if we were able to bring the system to its knees, it won’t stay there for long. And when the choice is our clients’ rights or the efficient grinding of the machine, I wouldn’t bet against the machine.

    So be careful what you wish for, as you just might get it.

    • emmylgant says:

      With due respect, from a non-lawyer, your comment suggests that this failed justice system is as good as it’s gonna get; that the responsibility for a well ordered society rests entirely in the hands of the individual citizen who, if he behaves, has nothing to fear from the law.
      Countless cases of abuses by law enforcement followed by calloused indifference of lawyers and judges say otherwise.
      In a well intentioned, well rested, well fed, well educated society, well thought out reforms could be enacted. Absent those circumstances only highly disruptive actions over a prolonged period of time change a system in my opinion.
      Giving the accused a trial if he wants one and a chance to safeguard a clean record,even if it takes years, is a better outcome than multiple wrecked lives caused by an ill advised, routine plea bargain.
      Dammit! We are still free… Some of us anyway.

      • Well said!

        “In a well intentioned, well rested, well fed, well educated society, well thought out reforms could be enacted.”

        I think there is one more necessary piece – a vested interest in reform. The people who own this country have no vested interest in reform. On the contrary, throwing away millions of people they were never that keen on educating or employing has thus far been seen as the cheaper solution.

      • shglaw says:

        Find the first 1000 defendants willing to give their lives to the cause and let me know. That’s the difference between being responsible for the lives of human beings and being able to talk about it from a distance where you bear no responsibility for doing it and won’t have to take a bullet yourself.

        My comment doesn’t suggest it’s the system is as good as it’s going to get at all, but real people suffer from the disruption you praise. Are you willing to be the one to suffer? Then go for it. I’m completely behind you.

  2. […] Reluctant Call for Mercy Killing: This Lawyer’s Opinion. […]

  3. […] A Reluctant Call for Mercy Killing: This Lawyer’s Opinion. […]

  4. interesting article.. good

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