Murderer’s Privilege (An Attempt at Mostly Fiction)

The heavy steel door latched shut with the tiniest of clicks just before the jail guard walked away. My seat was round and about as large as a personal pizza. My left buttock tingled and then drifted off to sleep.  Across from me sat my client, wrists chained to his sides, feet chained to the floor: standard procedure when visiting a client in the jail’s maximum security wing.

“So I’ve been talking to some of the other guys in here…”

Oh no. My client had been discussing legal strategy in his homicide case with his fellow inmates, several of whom lacked the legal skill to avoid picking up their own homicide cases.

“…and I don’t think I have received enough training on how not to be a killer.”

My client lifted two fingers far enough from the chains on his waist to slide his manila envelope across the table. I skimmed each clipping and set it on the table between us. Inside the envelope,, I found…

…one newspaper clipping about a man in Staten Island who died begging for his life while his killer choked him to death. The killer told the dead man to stop selling drugs on the corner, but the deceased did not stop quickly enough for the killer’s liking. The grand jury decided that the district attorney did not have enough evidence to charge him with anything.

…another newspaper clipping, this one about a man in South Carolina who shot his victim in the back several times as the victim ran away. Strangely, the killer bound his victim post-mortem. The killer’s companion walked up to the body as the killer dropped another weapon on the ground to make it look like self-defense. Both the killer and his buddy wore identically-colored clothing, and the group to which both men belonged had a fearsome reputation for intimidating and brutalizing their community.

…one last newspaper clipping. A man in the midwest fled a gunman on foot. The gunman caught his prey and took him down. The gunman fired his pistol at the deceased as he labored for breath on the ground. Before dying, the victim yelled at the gunman for what he had done. “You fucking ran, shut the fuck up” sneered the gunman’s companion. Another of the gunman’s buddies mocked the victim for his inability to breathe as he lay dying. The shooter later claimed that he had intended to use one of his less lethal weapons and shot the victim by mistake; he stands accused of negligent homicide, and not murder.

…and finally, a computer print-out of a 100-page report, authored by the United States Department of Justice. The DOJ had penned this report in response to another high-profile killing in Missouri. The final section, entitled “Necessary Changes,” had been dogeared by my client. His handwritten notes filled the margins on either side.

I see where he’s going with this. “So if I’m hearing you, you want me to argue that, like the police officers in these news clippings, you simply have not had adequate training on how not to stab your brother-in-law in the chest while arguing on Christmas Eve morning.”

That guy in New York begged for his life on camera. And they say that the cop was right to fear for his life? Why can’t I say the same thing? My brother-in-law said ‘I’m sorry’ to me right before I stuck him. But maybe I was still afraid of him? Was that completely fucking nuts for me to still be afraid of him? The DOJ says I would probably benefit from more training on ‘proper use of force.’ And shit. Most of these guys are never charged with anything. Why do they get to charge me?”

“So how about this: I make a pitch for you to voluntarily wear a body camera on your person for the rest of your life in lieu of a prison sentence. You want me to offer that?”

I don’t know. Should I?”

“Do you think wearing a body camera would help you value human life a little bit more?”

It couldn’t hurt.

“Well, it better. They’re finally charging cops for this in South Carolina, thanks to the fact that most people carry a high-powered camera in their pockets all the time. But maybe with time, your fear of getting caught hurting people will turn into finding genuine reasons to not want to hurt people.”

“Yeah, it couldn’t hurt.”

Barely missing a beat, my client added:

“You know what else I should get? A union representative to protect me from people’s complaints.”

“Well, you already have a representative, and I’m a member of a union. Is that close enough?”

“They also should have set up a citizen’s review board to screen people’s complaints about me.”

“You mean  a jury trial? Because you can have one of those.”

“No, not a trial. The thing before trial where all the complaints get dismissed.”

“You mean a grand jury? They indict everyone unless you are a cop.”

“It’s too bad I’m not a cop, or I wouldn’t be here right now.”

Unfortunately, my client was probably right.

-Norm

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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

Profiles in Happenstance

Chasing Truth, Catching Hell turns one year old today. A surprising amount has happened since then; my cathartic creative writing project is now featured on the ABA Journal’s “blawg” roll and has hundreds (plural!) of readers. An amazing community of bloggers, lawyers, writers, and informed citizens has visited Chasing Truth over the past 12 months.

Many stumble upon Chasing Truth through search engine queries. In furtherance of this blog’s goals of educating and entertaining its readership, I will attempt to answer the questions that many of Chasing Truth’s readers have been trying to answer with the help of the internet.

“How to win a Romero Motion.” This reader is a public defender (or intern) sitting in front of an office computer. His client faces a life sentence under California’s Three Strikes law. In a Romero motion, the public defender will, essentially, beg for mercy in the face of his client’s love of drugs and/or violence. In utter desperation, he has consulted Google for answers. Google doesn’t know how to win a Romero motion. Unfortunately, the only sure way to win a Romero motion is to defy the laws of physics and travel backwards in time to stop your client from having a record. If this is not possible, the public defender will simply have to plumb the depths of his client’s life story, find the shiniest nuggets of redeeming humanity, and convince a judge that the remainder of his client’s human worth is so precious that the drafters of the Three Strikes law would never have wanted the client to serve a life sentence.

In all seriousness, best of luck.

“What happened to Demontes Wright?” This reader is an idealistic young lawyer whose friend has a job in asbestos litigation that allows him to subscribe to HBO. Young Lawyer invites herself over to watch Gideon’s Army, an excellent documentary on public defenders. Gideon’s Army is the story of three intrepid public defenders in the South who war for their clients’ freedom against a drought of resources and a flood of indigent clients. During the climax of the film, public defender Brandy Alexander argues that her client, Demontes Wright, could not have been the man who robbed the liquor store in question. I’m sorry that the plague tornado knocked out the electricity before this reader could see the end, but rest assured that Ms. Alexander won her client’s freedom, despite the ease with which her innocent client could have lost ten years of his life in prison.

Related search: “Travis Williams public defender Georgia.” This reader has the bad luck of being accused of a crime in Georgia, and is desperately hoping that Gideon’s Army super lawyer Travis Williams will be his public defender.

“Are my rights violated if I can’t even go to the bathroom, but they say you’re not even under arrest and police interrogate me without reading me my Miranda rights?” This reader has been questioned by police to the point of physical discomfort. However, in deciding whether his rights have been violated, the question is not whether the reader felt free to leave. The question is whether the reasonable, prudent, Yale-educated Supreme Court justice would have felt free to leave under similar circumstances. If a member of the Ivy League ruling class would feel free to waltz out the door of the police station, this reader should too. If a cop has told this reader that he can’t use the bathroom, he is being detained. If this ever happens to you, stop talking immediately. In all honesty, consider soiling yourself to prove just how trapped you feel.

“Getting help for your client on remand” The good news is that this reader finally got a referral from that business card that he taped above the urinal in the bathroom that adjoins the visitor’s lobby at the local jail. The bad news is that now this client expects his money’s worth. This means that unless the attorney can lower his client’s bail, the client will not be able to make more money to pay the lawyer. This will oblige the lawyer to waive preliminary hearing and then dump his client on the public defender once the case is set for trial.

This reader needs to get his leased Audi out of the nearby parking garage very, very quickly. I know a number of reckless teenage vandals.

“Can a good lawyer get you out of anything?” This reader has hired the lawyer described in the paragraph above. Never underestimate the private bar’s willingness to sell a client an enema of sunshine in lieu of honest legal representation.

“How do you win a Marsden motion?” Unfortunately, I wouldn’t know anything about that. Best of luck to you. Indigent criminal justice reform needs to take place nationwide. People who commit crimes in my county are lucky to have such good representation. But I want everyone in America to have access to the same high quality level of defense. Protecting the rights of our most vulnerable citizens protects the rights of everyone.

“People in jail for drug addictions ‘leave a comment’” County jail is a terrible, smelly, occasionally violent, and perpetually depressing place. Its callow corrections officers are not interested in making any of its tenants into a better person. Maybe this reader needs to write a Yelp review?

“Movies about chasing something and never catching it” Thanks for stumbling upon my blog by accident. I really do appreciate the additional readership. I’m sure that somewhere, out there, is a Zooey Deschanel movie with your name on it.

“Can I add a profile to the Megan’s Law website.” This impish prankster has a great idea for getting his chemistry teacher fired. Unfortunately, these gates of hilarity are blocked by Department of Justice firewalls.

“Crystal meth cannot climax” Not to be an insufferable optimist, but some would say that this is a feature of crystal meth, not a drawback.

“Public defender burnout.” This reader is likely a public defender, and she was probably scheduled to spend a full day cross-examining tearful victims in an all-day preliminary hearing. This reader welcomed the excuse not to check the blinking light on her phone that tells her that she has yet another unhappy call to return. This reader may well be deliberately postponing that life-sentence case that he just cannot bear to try until another attorney takes over his calendar. Or, this reader may have the burden of being someone who works hard without complaining. His public defender’s office may have rewarded this work ethic by giving him some terrible, thankless, high-volume court calendar that the squeakier wheels refuse to do (and somehow get away with doing so).

For what its worth, I’ll bet that this reader is doing a great service to her clients. I will also wager that most of her clients think so too. We love you. Honest. You are why we need student loan forgiveness for government servants. Being able to pay bills every month without excessive anxiety would really help with preventing burnout, would it not?

“Pretenders drink while you’re at it.” This is clearly one of those Zen riddles that one ponders while hoping that his coworkers have not noticed the third vodka soda that he has ordered during the weekly office happy hour. This reader is cheating by searching the internet for answers.

A confession to friends of this blog; I never expected to still be adding to this site one year later. You make me want to keep writing. I reserve the right to broach this blog’s anonymity when I need to plug my first legal thriller; until then, I remain your secret admirer.

Respectfully Submitted,

Norm DeGuerre

A Modest Proposal for the Looming California Prison Crisis

In order to comply with a federal court order, Governor Jerry Brown must release 10,000 more prisoners by the end of this year. Over the past 15 years, California’s prison population has ballooned by 500%. At the time of the federal court’s order, California’s prisons were stuffed to 175% of inmate capacity. The release of 10,000 more will bring that down to the 137% ordered by the federal court. Prior to this, about one inmate per week was dying in prison due to preventable medical reasons made unpreventable by overtaxed prison health care systems.

The bulk of these prisoners are serving multi-year or multi-decade sentences under California’s Three Strikes law, regardless of how long ago a defendant committed his “strike” offense. At least a thousand are serving terms for non-violent drug offenses. Several thousand are approaching old age. Many others would be treated more effectively, more humanely, and more affordably in psychiatric facilities.

Governor Brown responded to the federal court’s most recent demand with what one lawyer called “willful defiance.” Governor Brown has since modified his stance to include giving over $300,000,000 to the Corrections Corporation of America to rent their for-profit prison facilities. Governor Brown says that this is necessary for public safety, because public safety would be jeopardized by the early release of an elderly inmate who committed a robbery 20 years prior, and who will likely die of natural causes before finishing his lengthy prison term for some property crime.

Governor Brown is missing an opportunity to solve problems in California’s traditional manner: letting the voters decide by way of ballot proposition. Californians routinely place decisions regarding criminal sentencing and the taxes that pay for it on the ballot for popular vote. Thus far, the initiative process has resulted in a huge prison population that no one wants to pay for. But that’s only because the right initiative hasn’t been passed yet.

I propose the following legislation:

Section 1

The Title of this act shall be the “Entitled Baby Boomer Criminal Justice Act,” and shall be referred to hereafter as the Act.

Section 2

We the People of the State of California have agreed upon the following knee-jerk reactions to the complicated social problems of crime and drug abuse in our state

a) If you do the crime, then you do the time [original emphasis];

b) We, the People, breathlessly follow any news story concerning the disappearance of a photogenic child, and we have decided that the sad afterglow of such a highly publicized tragedy is the perfect time to craft legislation that will apply to everyone for the foreseeable future;

c) We, the People, are very confident that no provision of the Act will interfere with the life, liberty, or happiness of anyone that we know, because they are good people and our kids are in private school;

d) Unlike the fields of medicine, astrophysics, or engineering, the subject of criminal justice requires absolutely no specialized education or training; this gives our opinions the force and weight of actual research.

Section 3

Recognizing that more than one-fifth of the current prison population are senior citizens, We the People declare the following measures necessary for public safety:

a) At no time shall an ailing or elderly prisoner be given access to motorized wheelchairs whose battery life would allow them to travel more than 20 feet beyond prison walls;

b) At no time shall an elderly prisoner be given access to non-motorized wheelchairs with brakes, since brakes would encourage elderly inmates to attain dangerous speeds during escape attempts;

c) All nurses, doctors, surgeons, and pharmacists who attend to elderly prisoners shall register as “criminal enablers” with the sheriff of chief of police of the city or county in which they reside, and shall not reside within 1000 meters of a park or playground;

d) For inmates who have been sentenced to serve additional time beyond a life sentence, their mouldy bones and other mortal remains shall be kept in a vessel made of recycled cardboard and stowed in a broom closet to be determined by the Department of Corrections and Rehabilitation.

e) An inmate’s age, frailty, or pitiful life expectancy shall not be considered when deciding whether to release the prisoner to ease institutional overcrowding, because if you do the crime, then you should do the time.

Section 4

The following provisions have nothing to do with the fact that the Act was drafted, edited, and promoted by the Corrections Corporation of America and the union representing state corrections officers:

a) Unlike alcohol, tobacco, and prescription opiates, cannabis sativa and cannabis indica are dangerous, addictive narcotics that cause overdoses, murder, and dangerous depletions of both Cool Ranch Doritos and internet bandwidth. Any inmate whose blood tested positive for the presence of THC at the time of their arrest shall not be granted early release under any circumstances;

b) Anyone who, while present in the United States without legal documentation, dares to exchange their labor for money, goods, or services shall be imprisoned in the county jail or in state prison for 16 months, 2 years, or 3 years. This includes those who exchange their labor for produce that they later sell themselves in lieu of actual wages;

c) No part of subdivision (b) shall be used to punish the Job Creators ™ who lure undocumented workers from their troubled homelands with the promise of toil in exchange for produce;

d) We the People, by way of our elected governor, and the Department of Corrections and Rehabilitation shall give as many millions of dollars as are necessary to the purveyors of privately owned prisons for use of their facilities. This policy will continue until California’s sentencing laws have accomplished their goal of creating a crime-free Utopia, which will assuredly happen some time before the state completely runs out of money.

Section 5

We the People hereby refuse to pay for anything that we want, including the implementation of the Act. Specifically:

a) All budgetary items not related to the prosecution and prolonged incarceration of inmates shall be tallied under a single line item called “bullshit;”

b) All of the costs for maintaining the prison population shall be deducted from designated “bullshit” expenditures, because no state services benefit the gainfully employed and our kids are in private school anyway;

c) The Courts of Appeal will heretofore be known as the Courts That Waste Tax Dollars by Delaying Executions, and their operating budgets shall be allocated along with all other “bullshit” expenditures;

Section 6

In keeping with California’s rich tradition of placing individuals’ constitutional rights on the ballot for majority vote, We the People hereby strip the Superior Court, Courts of Appeal, and Supreme Court of jurisdiction to hear cases in which prisoners allege that the Act strips them of due process rights or imposes cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Section 7

Any orders by the Supreme Court of the United States that are contrary to the Act shall be returned to the Supreme Court by registered mail with an affixed Post-It note that declares, “UR not the boss of me,” followed by the following emoticon: > : p

Since I am unable/unwilling to breach this blog’s anonymity to gather signatures and submit the proposal to the Secretary of State, I entrust you, my readers, to carry this torch for me.

Because if you do the crime, you should do the time!

In accordance with statute.

In accordance with statute.

Respectfully Submitted,

Norm DeGuerre

Norm Reviews: Orange is the New Black

Orange is the New Black (OITNB) is the newest program in Netflix’s burgeoning foray into original content. The premise is based upon the true story of Piper Kerman, a self-described WASP from Boston who, during an “adventurous, lost soul phase” after college, helped her girlfriend (a heroin dealer) sneak a suitcase of drug money into a foreign country. Ten years later (the statute of limitations of that particular crime is 12 years, by the way), Kerman is living a respectable life and engaged to Larry Smith, a writer. She is now an advocate for women’s prison reform.

The premise itself is a commentary on the overreach of tough-on-crime drug laws. It challenges our belief that “nice people” can never wind up behind bars. In fact, they often do. Perhaps more often than the average American might think.

Every episode of OITNB spends time focusing on one or two of the other inmates who share the prison with Piper. These flashback sequences often reveal how an otherwise “nice” person might find themselves serving a prison sentence. During the first few episodes, I find the flashbacks work just a little too hard to evoke sympathy from the audience. Later into the series, these sequences improve noticeably and are some of the show’s best moments. “I am in here because I am no different from anybody else in here,” Piper says during a visit with her mother. This is the sentiment that these sequences are clearly trying to invoke, and they are largely successful.

At the same time, OITNB manages to make prison feel closer than many of its viewers might have thought by illustrating the frightening overreach of this country’s war on drugs. Drug use and addiction lay at the heart of several characters’ back stories, as are the federal sentencing guidelines that give judges little power to do anything but send non-violent drug offenders to prison.

OITNB does not shy away from the subject of abuse by correctional officers. I appreciate OITNB’s desire to show the unsuspecting viewer at home the many indignities and abuses that female inmates across the country suffer at the hands of bent COs. OITNB shows COs fathering children with inmates, selling them dope, trading them dope for sexual favors, turning a deliberate blind eyes to inmate-on-inmate violence, and a slew of other crimes and sins that likely have corresponding true stories from real prisons. But the small cast of CO characters forces OINTB to have all of them display at least two of these behaviors apiece. The viewer at home should see this as creative liberty taken for the sake of compelling television (which OITNB certainly is) and not as unfair slandering of corrections officers.

What impressed me most about OITNB was the way it kept Piper’s personal story parallel to her prison experience. In one scene, Larry’s parents try to persuade him not to follow through with his marriage to Piper. They urge Larry to wait to see what Piper is like after having served her prison term. The sentiment behind their words is, doubtlessly, a sentiment that many of the viewers at home would have if their sons or daughters decided to marry someone who has yet to finish serving a prison term. Larry’s parents assume that prison, dank, disgusting, and violent place that it is, will make Piper a worse person, a person to whom they do not want their son shackled for life. Everyone who sympathizes with this feeling should then ask themselves what, exactly, is the purpose of our prisons if they make people worse than before they went in?

Even when a person leaves prison largely intact, that person is often no more prepared or able to avoid prison in the future. Only two characters leave the prison during the first season of OITNB, but one of them returns within two episodes. Tasha “Taystee” Jefferson spends two episodes preparing for a parole hearing that wins her an early release. However, after her release, she finds that the only distant relative willing to take her in makes her sleep on the floor, and allows the use of her floor for one or two nights at a time. Taystee returns to prison after committing a new crime with the intent of returning to prison because, ultimately, it was easier than life outside. Although I appreciate OITNB’s attempt at showing how a lack of outside support contributes to the revolving door that is our prison system, I have never, in my years of representing current, former, and future prisoners, met a person who wanted to return to jail. Perhaps my range of experience is too narrow.

One character in the series commits a rather sensational crime. She arrives to court ready to see her public defender, but a private lawyer seduces her into accepting his services — without pay. This is interesting because it is one of only two places in the season where public defenders are mentioned at all. The private attorney preys upon her distrust of public defenders so that he can represent her for his own selfish reasons. I can tell you that the counsel she received was very poor quality.

In the final two episodes of OITNB, four major characters accuse Piper of being a bad person. These people include her fiance, her lover, and her fellow inmates. Their reasons vary, but they all stem from actions by Piper that, at the time, were totally understandable. This occurs simultaneously with a subplot in which a senior prison official teaches a junior corrections officer to stop thinking of the inmates as human beings. It made me wonder how different the prison experience would be if it were not so preoccupied with telling the inmates that they are “bad people.” Bad actions can be corrected; bad people cannot. With the rate of recidivism so high, one almost wonders if those in charge benefit from that revolving door.

Overall, OITNB has truths to offer its viewers about a population that is largely invisible and voiceless. I hope its message reaches lots of other people through the lure of high quality television. If you enjoy reading this blog and are interested in what happens to my clients after they’re my clients, you should check it out.

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

Reasonable Courses of Action for Those Who Might Not Come Home Alive.

“This isn’t a court of justice, son. This is a court of law.” – Billy Bragg

When a jury of six people found George Zimmerman not guilty of murdering Trayvon Martin, I found myself utterly unable to respond to the verdict in real time. For those who have spent the past couple of months hiding in a cave with their eyes closed and ears plugged, George Zimmerman was a neighborhood watchman in Florida. Trayvon Martin was a teenage pedestrian who passed through the fiefdom over which Zimmerman stood vigilant against all the “punks” and “assholes” with his concealed 9mm pistol. Martin carried only Skittles and iced tea that he had bought from the store. Within seconds of spotting Martin, Zimmerman called 911 to report that he had seen Martin, in his neighborhood, doing nothing in particular. Although the dispatcher advised caution and restraint, Zimmerman lamented (in the recording of the 911 call) about how “assholes” and “punks” like Martin “always get away” and he decided to pursue. Zimmerman then followed Martin until Martin physically confronted the stranger who was following him for no apparent reason. In response to the nominal danger that he himself provoked, Zimmerman shot Martin dead.

I found myself unable to muster outrage because, frankly, I wasn’t surprised at the outcome. I also found myself unable to have any sort of conversation with anybody about it because those who either lamented or celebrated the verdict suffered from the same core delusion: that Court-With-a-Capital-C is a place for justice to happen.

Anyone who has spent one minute in an actual courtroom understands that a court is a machine; it has moving parts that fulfill their functions within predictable degrees of verve, skill, and enthusiasm. The list of possible outcomes for a case is limited, as are the possible options that the machine’s players can choose from prior to the case’s final outcome. And when the courtroom deputies radio to the basement to send their “bodies” (in-custody defendants) up to a courtroom for their court appearances, we receive a crude reminder of what this machine processes; it processes human beings. At no point during this process will the victims get their loved ones back, nor will this process heal any wounds or scars. Sometimes property is recovered, but more likely it will be repaid pennies on the dollar through the pittance that the defendant earns for his prison labor. At no point along this route does an accused receive the job training, addiction counseling, and/or long-term psychotherapy that would prevent a huge majority of all crime if they were freely available. At what point does anyone expect justice to squish through the sausage funnel at the end of this process?

Every final outcome in a criminal case represents an outcome that the system was designed to produce. Many years of lobbying by the firearms industry and self-defense enthusiasts produced Florida’s self-defense laws. These laws require no retreat and make no issue of who first instigated the violent encounter or why he did so. All a person has to do is claim that he feared for his life and kill the only other witness to the contrary. And when a person does this, faces trial on national television, and walks out the door afterward, the system works exactly the way that it was designed to.

Now, I have made no mention thus far of the races of either Zimmerman or Martin. The system flatters itself fair and impartial because–on paper–the race if the individuals involved should not matter. But if race does not matter, why was 71-year-old Trevor Dooley (African American) denied an acquittal when he claimed that he shot a man thirty years younger, four inches taller, eighty pounds heavier, and did so in self defense?  Why is a black defendant 354 times more likely to be convicted of murder than a white defendant in cases alleging “self-defense?”  A law that claims to be race neutral while producing racial injustice is, regardless of its intent, a racist law. The courts that enforce racist laws produce racist results.

The courts in Florida and elsewhere enforce laws that make it dangerous for young black males to walk home from the store and dare to defend themselves against a stranger who decides within seconds that they are “assholes” and “punks.” This is not justice, but justice is not what these machines produce.

The solution for law abiding citizens who want to come home safely from the store is to stop relying on courts to produce justice. For the past four weeks, a group of students calling themselves the Dream Defenders have been staging a sit-in protest at governor Rick Scott’s office seeking redress for the laws that allowed Zimmerman to legally kill Trayvon Martin; they are trying to stop the gears of the machine with their bodies. In response, Florida house speaker Will Weatherford has announced his intention to hold hearings on Florida’s self-defense laws. The Dream Defenders clearly understand that justice is something that must be sought outside the courtroom.

Please don’t think of this as a tardy Trayvon Martin piece; I prefer to think of this post as a timely piece in support of those actively resisting the systemic racism of our court system as though their lives depend on it.

Their lives do depend on it.

Respectfully Submitted,

Norm DeGuerre