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.