Grandma, Should I Plea? (A Largely True Story)

“I have an idea – humor me on this.”

I would never have imagined saying these words to a client on the eve of trial. We were in court for a last-minute settlement conference. The jury panel would show up the next day. My client was about to make the most important decision of his life.

I showed my client a quarter that I had pulled from my pocket: “Heads you go to trial, tails you take the deal and go home today.”

My client’s grandmother sat in the first row of the courtroom. She clearly wanted to see what I was going to do next and she did not look at all alarmed at the proposition I had just made her grandson. Meanwhile, the district attorney paced in the back of the courtroom with his cell phone against his ear, trying to postpone a fundraiser for his upcoming political campaign.

Before we had come back into the courtroom, while we were in the courtroom’s attached holding cell, my client had asked me if he could ask his grandma her opinion on whether he should take the district attorney’s plea bargain or go to trial. I told him that he could, and I offered to tell the DA to do his campaigning outside the courtroom. “Fuck it, I ain’t got anything to hide. I didn’t do this and he can hear me say it.” I considered that a knowing and intelligent waiver of attorney client privilege.

My client’s resolve liquified – more than a little – after discussing his options with his grandma across the courtroom guard rail.

My client expressly asked me to share my impressions of his case with his grandma, so I gave them to her. She understood that my client was so drunk on the night of the incident that he had no idea that his friend was going to pull a knife, or that he was going to stick it in the chest of his sister’s ex-boyfriend who happened to be at that same party. She knew that he fled the scene only because he was afraid that the other people at the party were going to come after him for what his friend had done, and besides, the stabber was also my client’s ride to the party. She understood that her grandson had not heard his friend call out the name of his gang before sticking his knife between the victim’s ribs.

She also knew what the DA was going to argue: the red belt my client had worn in high school, the picture of him beneath a flag depicting a gang-related symbol that he used for his Tinder profile, and the red shoelaces on his Nike Cortez shoes proved that he and his friend were members of the same semi-organized criminal gang, and that they orchestrated this stabbing specifically to spread fear of their gang. She didn’t need me to tell her the tilted ratio of frightened white people swimming in our local jury pool, or that these same white people might believe the DA’s outlandish theory. If the gang enhancement were to be found true on top of the assault charges, my client would spend the next 24 years in prison. The only bright side would be that at his age, my client would be released by the time he was 42, with not an insignificant amount of life left to live.

I explained to the grandma that my client had one key that would let him go home; if he pled to just one of the several violent felonies he was accused of and admitted that he did it “for the benefit of a criminal street gang,” he would be released that day. The catch was that my client would be on gang probation for 5 years, and that gang P.O.s carried side arms and pat-searched the probationer and anyone in the home whenever they came for their unannounced visits. If they found any reason to violate his probation, he could wind up serving those 24 years anyway.

He was hopelessly torn, so I suggested the coin flip.

I tossed the coin into the air. It spun. I caught it as it fell. I slapped it against the top of my left hand. I failed to notice that the DA had hung up the phone and was no longer talking. I began to lift my fingers, as though I was about to pull away my hand and show the coin face underneath, but I did not pull my hand away.

“Now admit it – there is one side that you want to see more than the other.”

My client pulled in his lower lip, and nodded. “I want a trial,” he said. I kept eye contact with him while putting the quarter back in my pocket.

“You’re not going to show me what it was?” My client asked.

“No. Why does it matter? We were never going to decide this with a coin flip.”

My client sighed, straightened his back, and nodded his head again. His grandmother beamed with pride while her hands still clutched the guard rail in fear. Both thanked me for helping with his decision.

I had gotten the coin flip idea from an old episode of Frasier – I doubt that they would have wanted to know that.

Now, if you readers are wondering what happened in this case, whether he won or lost, I ask you whether that matters, and whether a decision that important should be determined by win or loss.

Respectfully Submitted,

Norm

Criminology 201: Selected Topics in Disorganized Crime

Criminology 201: Selected Topics in Disorganized Crime

In my last post, I discussed a client whose life experience failed to square with the accepted narratives that are taught to police, probation, and corrections officers during the course of their training. I now have a vision of what it would look like if my client were given the chance to communicate his life experience in a classroom setting. If any criminal justice class actually would let this client teach the lessons that he had learned just by living his life, the final result would probably be a wonderfully educational public relations disaster for the school in question. It might climax in a conciliatory letter of some sort to the aggrieved student body, with a short explanation of how little their textbooks had prepared them to comprehend life on society’s margins.

Like this one:

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From the Office of the Academic Dean, William H. Taft Institute of Criminal Justice and Weight Loss:

A number of students who were enrolled in last semester’s Advanced Criminology seminar have petitioned for review of their grades and disclosure of the grading criteria used by last semester’s guest lecturer. Our guest lecturer has provided a complementary set of explanations for the final exam that was given at the end of the term. He hopes that you will then use the lessons contained within his explanation to  figure out what went wrong with the remainder of your assignments, and assures you that “life is hard, but it isn’t complicated.”

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Question 1: Multiple choice, choose the correct answer.

You are a probation officer supervising a juvenile ward. He is often truant from school, and his urine has never tested negative for THC, suggesting daily marijuana use. To aid in this minor’s rehabilitation, you should:

a)    Violate the minor’s probation and advocate for his detention in juvenile hall – the

       minor must cease his violations of state and federal drug laws

b)    Order the minor to enter residential drug treatment for what is clearly a crippling

       addiction to a Schedule 1 controlled substance

c)    Get the minor drug counseling and something, anything, worthwhile to do with his day

d)    Wait until he gets arrested for something more serious, and then figure it out

Half of the class chose answer choice (a), the other half chose answer choice (b). Clearly, neither half had experimented with marijuana in high school. If you had, you would know that marijuana is not a reason to skip school; the decision to skip school is made completely independently of the decision to smoke pot. School holds nothing for a huge number of these children. They often have learning disabilities, or anger problems, and largely-inherited substance abuse patterns. They need far more help to succeed in school than they receive, and many predict their own failure early and throw in the proverbial towel. And with all this free time these kids now have, why not smoke pot?

Of course teenagers shouldn’t be smoking pot. It interferes with their brain development, screws with executive functioning (very relevant for someone debating the merits of stealing a car), and creates a lifestyle that makes it very hard for them to interact with professional adults (teachers, employers, customers, etc). But pot isn’t dangerous; in fact, it has no known fatal overdose. Depriving them of freedom for smoking it is counter-productive at best, and completely self-defeating at worst. Of course, some sort of intervention is necessary, and without it, this minor will likely end up in serious legal trouble: not because of marijuana, but because of the people in his life who also happen to smoke it. Those who reside in the real world will answer with choice (c). Those who are already employed in the system might answer with choice (d), but that’s not the right answer either.

Question 2: Multiple choice, choose the correct answer

Which of the following can be considered as proof that a juvenile has joined a gang?

a)    Wearing baggy jeans

b)    Living in a neighborhood that is controlled by a gang

c)    Spraying gang graffiti on a highway overpass

d)    None of the above

To those who chose an answer other than choice (d), consider for a second that the word “gang”suggests a semi-disciplined criminal conspiracy. Wearing certain styles of clothing, even if that clothing bears the colors or logos that gangs use to identify themselves, says nothing about whether a person is a member of any such organization. Anyone can wear a certain color of clothing, and clothing can be shed at will when the social group dynamics cease to reward the teenager for wearing them.

Like conformist fashion tendencies, mindless vandalism is also common to at-risk youth. Anyone can spray anything on any surface; the vandal does not need to have been given orders to do so in micro-writing that was smuggled out of a maximum security cell block in the anus of a corrupt corrections officer.

Finally, while many gang members have the misfortune of growing up in neighborhoods that are already divided into gang rivalries, no sane person chooses to live there. People are born there, stay there, have no hope of ever leaving there, and will probably die there. These kids have roughly the same life expectancy as someone living in the Middle Ages. Gang membership is assumed by rivals just by virtue of that child’s neighborhood. Before the child knows it, he is choosing his bus routes to school so as to avoid “rival” territory. He is already suffering the drawbacks of gang membership; wanting to accept the benefits is an easy sell, especially if they have no other alternative for safety. Again, the correct answer is choice (d).

Question 3: Short answer

What does it mean to “hold someone accountable” for his actions?

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Holy shit. As often as I heard you say this during our class discussions, very few of you seem to know what this phrase actually means. Holding someone accountable doesn’t mean showing them that their actions have consequences: anyone who has witnessed a car accident understands this. It doesn’t matter how many years of prison a person receives; the Convicted does not need you to remind him, repeatedly, in varying tones and volumes, that his own actions resulted in tremendous loss to himself and others. I suspect that many of you relied – to your detriment – on the thesaurus, which lists the following as synonyms for this phrase: attack, brand, blame, denounce.

Holding someone accountable for their actions entails building empathy for those affected by their actions; these parts of the brain may have atrophied from years of mistreatment in childhood, so we need to be patient. Holding someone accountable includes teaching them about alternative choices that could have been made. Extensive work needs to be done with those who – with or without reason – felt that they had no choice in their actions. Too many of your answers would have fit on bumper stickers, let alone three lines. Put more thought into phrases that are used so frequently. And for God’s sake, stop thinking in slogans.

Question 4:

Describe a situation where a person might plea “no contest” to a crime that they did not commit.

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Again, a disappointing number of blank answers for this question. The students who confronted me about this question after class insisted that no one in their right minds would do such a thing. During the course of these conversions, I inferred that none had ever been given poor legal advice by an attorney that either did not have the time to care, the ability to care, or the retainer to care about that person’s case. A depressing number of Accused plea because, quite simply, they do not have confidence that their attorney has heard, understood, or investigated their defense. And without a defense, why wouldn’t they plea?

Do not underestimate the frightening penalties that follow trial, especially in jurisdictions where the criminal sentencing laws (and the judges tasked with imposing them) are left to popular vote. Many, many innocent people (or people who have a colorable argument for their innocence) surrender their rights simply to minimize risk.

Finally, don’t underestimate how often the district attorney uses a “devil’s bargain” to coax a plea from a defendant who has a strong defense. In fact, the deals become more irresistible as the prosecution’s case weakens. For example, a defendant who is in custody on the day of trial will find a “credit for time served” offer irresistible. An 18-year-old will plea to terrible things in exchange for minimal time. A good lawyer will sometimes advise him or her not to take the deal, but the defendant will always respond by asking, “But I get to go home today?” In California, an 18-year-old becomes a walking life sentence if the charges to which he pled happened to be “strike” offenses; his next felony case might result in a life sentence. The DA gladly cuts time up front with the expectation that they will get him later; and if his record is made serious enough early on, that “later” can last the rest of his life.

I know that the premise of this question hurt some students’ tender sensibilities, but taking my lectures seriously would have given you plenty of material for to answer this question.

Question 5: Essay

Part I: Consider the the following hypothetical. The minor described below is a ward of the juvenile delinquency court and you are his probation officer:

    Jaime is a 15-year-old high school freshman. His mother probably should not have had children until she had a stable relationship and/or living arrangement. Jaime’s mom probably should have tried to have all of her children with one person, rather than several people. Jaime’s father should have attended his domestic violence classes like his probation officer wanted to. He also shouldn’t have died when Jaime was 9 years old. Jaime’s mother should have finished her drug rehabilitation program and should not have relied as heavily upon her own mother for child care. Jaime’s mom should not have dropped out of high school, because Jaime’s mom should not have had to settle for working a graveyard shift at the front desk of a shady motel by the freeway. Even though she insists upon working this job, Jaime’s mom really should be getting home in time to make sure that Jaime and his little brother are getting to school on time.

    Jaime should never have failed his first semester of high school. Jaime should have studied harder and placed a greater emphasis on his education. Jaime should not have gotten himself suspended for fighting; Jaime should learn to control his seemingly irrational bouts of anger. Jaime should not take his anger out on his family by punching holes in the wall. Most importantly, Jaime should not be cutting class to smoke marijuana.

Part II: Please comment on the following, and show how it would influence the way you would approach Jaime’s supervision:

When you use the word “should,” you are arguing with reality.

Unfortunately, I have no sample answers to discuss because none of you attempted an answer. This was disappointing given the preoccupation that most of the class expressed concerning criminal street gangs. Several students expressed interest in stopping violent gangs, mainly because of some awful episode of Lockdown: Life on the Inside that they insisted upon mentioning in class.  However, none of you realized that little Jaime is a prime candidate for gang membership. Kids love group identity, and young men love a sense of feeling power and control.

Imagine the many, many niches in Jaime’s life that would be filled by a gang. He would have family, safety, financial opportunity, and a steady drug source within one social circle. Eventually, Jaime will get caught. He will be arrested. He will be sentenced according to the astoundingly severe sentencing laws that Californians put on the ballot. As a result, Jaime will possibly serve 10, 15, or 20 years in prison on his first case. And with nothing to do for 10-20 years, and with no social capital other than gang membership, what do you think will happen once he gets to prison? Prison gangs are the Frankenstein of California’s criminal justice scheme, and fixating on what someone should do, taking decades from their lives for things that they should not have done won’t actually fix anything.

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Well, readers? What is your answer to Question 5? How would our approach to criminal justice issues change if we addressed the real world as it is, and not how it “should” be? Anyone? Anyone?

Please share your thoughts in the comments section. I would love to hear some new ideas.

Respectfully Submitted,

Norm DeGuerre

Criminology 101 – Advanced Theories of Street Crime and Hard Time.

“There was crime, but it sure as Hell wasn’t organized.”

This is a quote my client told me in an interview room at the jail while recounting his growing up as a gang member in an agricultural community about two hours away from my county’s Hall of Justice. Nearly all of the adults in his life had been unemployed and/or addicted to something. He and other kids who roamed the streets–instead of going to school–banded together, usually under the influence of some older brother who had just recently been released from prison. They wore the same colors and got the same tattoos. But this was no paramilitary criminal conspiracy; most of this group’s crimes revolved around drugs and fighting.

This client was baffled that the laws that had been passed to catch sophisticated criminal conspiracies were being used on him. He was accused of helping his codefendant sell $1500’s worth of stolen property to an undercover cop. And by “helped,” he actually sat in the codefendant’s living room drinking 40 ounces of something vile while the codefendant sold stolen property to an undercover cop. But because he and codefendant grew up with each other and had been members of the same “gang,” the district attorney believed that he was somehow furthering a criminal conspiracy merely by his presence, which happened to be on the couch, drinking.

Within days of that fateful bout of day-drinking, my client checked himself into rehab. Weeks after, he began the necessary court proceedings to get visitation rights for his daughter, who prior to that had been on the verge of being placed into foster care. He no longer had to live with his old gangbanger friend or rely on his old gang ties as currency for life favors. And then the district attorney indicted him.

He spoke with pride about the two community college classes that he had passed between bouts of incarceration. He mentioned having a fantasy in which he was able to share his life experience with future law enforcement in a classroom setting. And I had to wonder what that would look like.

Few if any of the professionals working in the field of criminal justice have any personal experience that allows them to relate to, let alone understand the people on its receiving end. Communicating that experience to others is a challenge that I will take up in my next post.

Respectfully submitted,

Norm DeGuerre

To The Wolves…

A client of mine was recently sentenced to 19 years in state prison. His sentencing took place a handful of days after his 18th birthday.

Prior to that, and all during the time I represented this client, he was housed at juvenile hall. Although he was a teenage boy, the district attorney decided to charge him as an adult.

By age 16, my client had made the very grown-up decision to replace his failed high school career with the instant acceptance and gratification he got for having the same tattoos and wearing the same colors as the tough kids in the neighborhood who never looked afraid of the cops, or of anybody for that matter. My client then learned that if he sold weed for them, would get paid both money and weed. His one parent who was not perpetually high on crank worked two jobs; no one lifted a finger to save him.

None of this changes the fact that he swung a knife at two other gang members to keep them at bay while his buddies pummeled another kid, who was also a gang member. But the kid described in the police reports bore little resemblance to the kid facing a felony sentence two years later. The kid who sat beside me was in protective custody after resigning gang membership in the most terrifying and official way possible: by renouncing gang membership when he was booked into the adult county jail on his 18th birthday. My client had his GED and had devoured the copy of Ender’s Game that I had loaned him.

For the next 16.15 years (which is 85% of 19 years, as required by law), my client will be a ward of California’s bloated prison population. For perspective, the Supreme Court recently ordered California Governor Jerry Brown to release another 10,000 prisoners by the end of the year. A federal court in Sacramento had found that, on average, one person per week was dying due to preventable medical reasons, made unpreventable by the fact that California’s prison system was at over 175% of capacity. With the release of 10,000 more prisoners, the prison population will hover at the 137% of capacity ordered by the court.

Who are all of these prisoners? Some of them are terrifying individuals. It should be no surprise that there are some pretty scary people in prison whose crimes garner media attention and inspire harsh sentencing laws, like Three Strikes. But then those laws are used against less-scary people who wind up in prison for decades for crimes such as stealing a bike, or punching a security guard while shoplifting a beer. Many of these laws were passed through ballot proposition, and by overwhelming margins. None of these laws included new taxes to pay for the added expense of more prisoners and, as more and more “lifers” entered old age, more elderly prisoners.

Also, let us not forget that since the California taxpayers decided that they had had enough of funding state hospitals for the seriously mentally ill, the Department of Corrections has become the biggest purveyor of mental health services in the state.

Among the more notorious groups in prison are California’s prison gangs. California’s prisons have themselves been the incubator for violent prison gangs whose associates on the street, especially their impressionable family and neighbors, form the tendrils of the monster that sucks in kids like my client like a hungry giant squid. Voters responded to their Frankenstein by passing the Street Terrorism Enforcement and Prevention (STEP) Act by, you guessed it, ballot proposition. This was the law the DA chose to use to have ten years added to my client’s sentence.

These are the forces that have combined to send someone who can’t grow a moustache to live in a locked facility among actual hardened criminals. Although he could have controlled his behavior on the day he was arrested, I fail to see what say he had in any of the surrounding circumstances that, at the time, made a knife fight with gang rivals seem like a good idea.

I also fail to see how a decade-and-a-half in California’s prisons will change those circumstances. Like it or not, people like my client will be our neighbors again, someday. Will his time behind bars make him a better neighbor? Will my client “spend his time regretting his crimes and holding himself accountable for his behavior” like he is supposed to?

This will only be true to the same extent that a dog might learn not to relieve itself indoors by having his nose rubbed in it; unless punishment occurs more or less simultaneously with the crime, the punishment won’t be associated with the crime. Anyone who has successfully completed any prison term, of any length, will tell you that after year 3, 4, or 5, the unique combination of misery, anxiety, violence, and boredom is no longer associated with any specific cause; it becomes suffering without purpose, lesson, or goal.

When my client is released 16 years from now, his neighborhood will either still be dangerous, or will be razed to the ground in order to make room for retail stores and stucco condominiums. The schools will still be failing, and even more job opportunities will have been either shipped overseas or given to machines.

So the only consolation that I can give to my client, on his 18th birthday, is that the world might not change as much as one might expect before his release.

Respectfully Submitted,

Norm DeGuerre

And what did you do on your summer vacation?

I wish I had known what I know now about juvenile gang members back when I was in high school. The Norteno/Sureno rivalry had already divided my middle and high schools in the Central Valley, and that was in the mid-1990’s. But I cannot say that my high school experience was “shaped” by gang violence in any way; by the end of high school, I had not interacted personally with any of the “gang bangers” for about five years. The academic tracking and income disparities in my high school meant that the “gang problem” at my high school really only touched the 30% or so of the school who were 1) Latino, 2) poor, and 3) not on the “AP” track.

I hesitate to throw the phrase “academic apartheid” around, but I’m at a loss for another description.

To make it even more unlikely that I would ever actually interact with one of Small Central Valley Town High’s “gang bangers,” they would often disappear for months at a time. Now I think I know where all of their time went.

Juvenile court makes huge demands on a kid’s time: random urine tests, court-ordered therapy, drug counseling across town, alternative schools. To make these appointments, kids take two, three, or four buses from one amorphous city to another. And if the bus route goes through rival gang territory? If you had to choose between being yelled at by a judge for skipping a pee-test and being stabbed, what choice would you make? These kids aren’t equipped to handle this level of responsibility. Don’t underestimate the amount of social capital necessary to reliably be at a certain place by a certain time when expected to do so. Sometimes the kids give up and decide that it’s easier to run away. Find a girlfriend who’ll open her window at night for a place to sleep. Maybe go steal a car and sleep in that. Believe it or not, this is easier for some kids than making an appointment twice a week in a city fifteen miles away.

And when they fail to “comply” with treatment, and when they get caught, they’re whisked away to a 6-8 month “enhanced ranch program.” Not that this program is THAT onerous, and not that they don’t need to screw up quite a few times on probation before they face this consequence, but just count how many days of one’s youth goes into such a project.

The Ranch is part high school, part kiddie jail, part camp. It’s located on the outskirts of the outskirts of town surrounded by a really tall fence. With the push on keeping kids out of Juvenile Hall, the Ranch is the most severe punishment the system can give to children. Well-behaved clients can even earn weekend privileges to visit their family at home.

And just so you know, the title to today’s post is more for effect than for accuracy; probation doesn’t care where a kid is in the school year to send him to the Ranch. For my clients who were actually doing well in their traditional high school (more than you might expect), the best-case disruption scenario is that it only ruins their summer vacation.

When I finally visited the Ranch last week for the first time, I saw six of my most frequent clients there. This was the surreal alternate universe where “gang bangers” go after getting in trouble too many times. I saw one client learning how to weld. There was another client learning how to use Photoshop. And there was another client being tackled by two big probation counselors.

And every single one of my clients was happy to see me. Clients who cussed me out the last time I saw them came up to me, shook hands with me, and showed me what they were doing or making. I think they were just happy to see someone from the outside, from the “real” world. Maybe it reminded them that the Ranch was just temporary if they played by the rules for long enough?

And as I left, I thought to myself, “This is where the gang kids at my high school disappeared to.”

Respectfully submitted,

Norm DeGuerre

Where Mercy is Not a Virtue

In the mid 1990’s, a repeat-criminal kidnapped, raped and murdered a photogenic twelve-year-old girl. In response, the state legislature and the voters raced to pass their own version of the Three Strikes Law.

And now this law is used against children.

My client today is barely old enough to drive and has never been in trouble with the police. However, through what I assume is a wide array of forces beyond his control, he began hanging out with gang members. He and two others beat up a kid they believed to be from a rival gang. The fight ended when one boy stabbed the victim, collapsing his lung.

As horrifying as this is, understand that you, the law-abiding citizen, are not powerless. The State of California may not have the resources to send a train really fast to Los Angeles, but they have no problem pursuing, arresting, and incarcerating children.

And thanks to the Three Strikes Law, Californians are able to deprive this child of vast numbers of years of what may well be his very, very short life based upon a thoughtless-but-terrible mistake.

The District Attorney accused my client of assault with force likely to produce great bodily injury. This was not an inaccurate charge, but he went further to allege that this crime was done “in association with” a “criminal street gang,” making the offense a strike.

What my client did was wrong and he deserved the trouble he was in, but a strike is as heavy-handed as you can get for a minor’s first offense. Any legal trouble in the future, however petty, could thus mutate into a multi-year prison commitment simply because of one terrible mistake made without one iota of executive functioning or rational thought.

Clearly the right thing to do is to show some degree of mercy to a boy who has just made the biggest mistake of his life. In this case, mercy would have been to remove the gang “enhancement” which would also have removed the strike. This is the right thing to do because the entire State of California is now his opponent. Mercy, by definition, can only be given by the strong. The weak are in no position to exercise “mercy.” If the strong fail to exercise mercy, then mercy will not exist, and this boy deserved mercy.

And so I asked the District Attorney for mercy. He said no. So I withdrew my client’s time waiver, forcing him to prepare his case for trial in under seven days. The Sixth Amendment to the US Constitution guarantees a “right to a speedy trial” but a defendant may choose to waive that right. A common reason to “waive time” is if more time is needed to gather evidence for their defense, but clients can pull their waiver whenever they want. Setting a case for immediate trial is the best way I know to handle an arrogant DA. When threatened with the possibility of real “work,” DAs usually make my clients a more reasonable offer. This case was no different. The evening before trial, the DA called me and told me that “after talking it over with [his] supervisor,” a non-strike was called for.

At this point my client is not receiving mercy. I pushed a rookie DA into a corner through parliamentary tricks, and he decided that it was easier to drop some of the juggling pins.

So it goes.

I speak with the DA again about amending the charge to a non-strike. We then discuss the subject of sentencing, which is called “dispostion” in juvenile court – doesn’t that sound nicer? He thought my client deserved commitment. I disagreed, stating that probation and the judge should have the ultimate say.

I found the DAs offer distasteful because I was taught that we don’t negotiate a “plea bargain” with kids. “Plea bargaining” is that unsightly process that keeps the adult courts moving despite the grotesque over-burden. If every adult defendant exercised all of his constitutional rights, the system would grind to a screeching halt. To prevent this from happening, defendants are offered “deals” to make them plea guilty. But we’re not supposed to do that with kids – they take responsibility for what they did and it’s up to the judge and the probation officer to decide a suitable “rehabilitation” program. Because I was taught we don’t “punish” kids, either.

The DA left our conversation there, but I could tell that he was holding something back. He almost said SOMETHING several times, and made vague references to what His Office had discussed about the case.

When it came time to recite the plea bargain on the record, he finally said what he was thinking. What he wanted was for my client to plea to the non-strike with the expectation that he would receive a commitment – if the judge decided otherwise, the deal was off and my client would once again face trial-keep in mind this boy is barely legal to drive- for a strike offense.

Because after all, he gave my client SOMETHING. Is it so unreasonable for the DA to ask my client to give the State a little sumpin’ sumpin’ in return? Say a little sumpin’ like six months’ worth of shitting in a bathroom with no doors? This would be like a pickpocket telling you, “I didn’t take ALL of the money out of your wallet, so you should give me half of what I left in there out of consideration.”

My client took the deal anyway – I guess I did a very, very good job of explaining the dire consequences of having a strike on his record. But I worry that I failed him in a number of ways. Mostly, I worry that I failed myself. So many thoughts about this case needed to be said because I think they were true. And I suppressed truth. And where I didn’t suppress it, I lacked the emotional vocabulary to voice it in real time. Would it have helped my client? Maybe yes and maybe no. I did get him the best offer he could have received from the DA’s office without having to put my client through a trial. But I think it would have also helped him to see someone stand up to “the man” on his behalf and to hear someone on the record call “bullshit” to a totally egregious sentence.

Mercy is not given in exchange for something, otherwise, it is “consideration.” Mercy is given despite being in a position of strength; flexing your strength to make someone accept your “mercy” is actually intimidation. Mercy is given regardless of whether the person deserves it; if the person deserves what they get, that is justice, not mercy.

And very, very few boys do not deserve mercy.

What do you mean my son is a gang member?

The following is a faithful paraphrase of what I told my juvenile client’s father this morning in response to his protests that his son was not a “gang member.”

Sir, I understand that this is your son’s first time in court on a juvenile case. I also understand that your son is not involved in an organized criminal enterprise simply because he and his friends beat up another kid for wearing the rival gang’s colors. Trust me, I would never label what your son and his friends did as “organized” in any way.

Your son is not a member of a gang; he’s the member of a group – and kids LOVE group identity. High school is even worse now than when you and I were there. Kids still worry about being liked by their peers. They want acceptance, but not from their parents. They want approval and support, but not from adults. Also, high school is DANGEROUS today, much more so than when we were kids. Three decades’ worth of poverty and urban decay have created an entire subclass of high school students who fear for their physical safety at the hands of kids whom they have to see every day in school. They don’t want safety from the police because the police can’t give it to them. They don’t want safety from the school administration because their actions often make things worse. One well-meaning adult can have a devastating effect on a child’s equilibrium with regards to safety and security. In short, teenagers want even less to do with adults now than we did when we were teenagers. But now they don’t just need social acceptance, they need safety and economic opportunity.

And so how do you expect a kid to react when he’s told that so long as he wears the same color as another group of kids, draws the same symbols on his binder, and shares the same hatred for a rival group, that he will have that group’s loyalty and support? The feeling must be intoxicating.

Now some of these kids are, in fact, organized into criminal enterprises. Some may even get orders from friends or relatives who are, in fact, involved in the prison gangs. They may even receive written orders that the prison gang leaders write on scraps of paper in their own urine. And after these leaders bribe prison guards to smuggle them out and these notes find their way to the streets, some kids may actually carry those orders out. However, this is a tiny fraction of the kids who claim any sort of gang affiliation.

But once boys like your son start aligning themselves with the handful of kids who are parts of these gangs, the state machine takes over. Every kid who yells “Norte” during a fight is believed to be part of a disciplined, quasi-military enterprise. The DA then charges these kids with “strike” offenses. When they turn 18 or 19, they pick up their first felony. Because of their strike offenses, they go away to prison for years and years. Once in prison, they join the actual prison gangs that the police claimed they were affiliated with in the first place. Eventually, they return to the streets with faces full of prison tattoos and no source of support or approval outside of the gang.

In short, the State wants to jump your son into the very gang they’re accusing him of having joined.

The good news is that the DA didn’t have the information that I have when he decided what to charge your son with. They don’t know about the victim’s concussion, so they won’t add the “great bodily injury” enhancement. Although I am more than a little annoyed that your son decided to waive his Miranda rights and brag about his gang “affiliations” to his probation officer, the District Attorney did not have any of your son’s boneheaded statements before deciding what to charge him with. Therefore, they didn’t have time to add the “gang” enhancement.

I agree that in an ideal world, your son wouldn’t have to plead to a felony assault charge that will prevent his juvenile record form being sealed; a kid should be allowed to make one non-fatal screw-up without having it hung from his neck forever. But none of that compares to having a strike on his record. If your son pleads TODAY, the DA won’t have time to aggravate the charges. Please, despite the fact that you met me only ten minutes ago, you need to trust me on this.