Yeah, I bet you didn’t see that coming. At least, not from a lawyer.

But it’s true.

I don’t know which came first, lawyer jokes, or, simply, lawyers who are, in fact, jokes. But the truth of the matter is that much of what’s wrong with law in the United States today is our fault.

Oh, I know. I know. We’ve got practices to run, families to feed, and the crush of clients-without-money is just too much.

So when the Sheriff’s Department says, “You need to fill out this form before you can be admitted to the jail to see your client,” who are we to argue? When the lowest-possible-level clerk at the window says, “It will cost $100 to put your client’s criminal case on calendar,” why should we ask “why?”

We’re busy. So we just do it.

“Legal basis?” What the fuck are you talking about? We don’t need no steenkin’ legal basis!

What? What? Wh-wh-wha-what?! “What brought this on, Rick?!,” you wonder.

Well, I just got back from the Hanford, California, jail a little while ago. (Yeah, I know. It’s late. Some questions, I don’t ask, apparently.) Before that, I spent part of my day in Madera, California, approximately an hour-or-so to the north, trying to put a case on calendar.

In Madera, my client was arrested for the bullshit charge commonly-known amongst those who have been practicing criminal law longer than a month as “contempt of cop.” In the process, he was blessed with one hell of a nice shiner. Well, okay: it’s not really a shiner, but the entire right-side of his face was a lovely shade of purple.

I suggested to the slightly-curmudgeonly, if grandfatherly, near-70-year-old man, a photographer by trade, “No doubt you’ll say, ‘You think that’s bad, you should see the other guy!’”

He replied, “I wouldn’t know. I only saw the bottom of his boot.”

You see, my client had allegedly been stopped for a traffic violation. Being from a generation past when it was normal to get out of the car to greet the officer, he was taken aback when he was brusquely ordered back inside “your vehicle.” (Police officers despise referring to cars as “cars”; they are “vehicles.” This works particularly well with the Hispanic population which comprises the near-majority in California. But as most cops in central California are white — and not a few are white supremacists — they could give a shit.)

You see, my client had difficult complying with the order, because he had inadvertently allowed the door to close behind him. Not being the most wealthy of men, the door release was busted and he therefore normally had to enter the car from the passenger side. As the officer refused to listen to his explanation, merely repeating his order, my client attempted to comply by heading for the passenger side.

Big mistake.

The officer was on him like — well, I’d say like a fly on shit, but in this case, it was the officer who acted like a piece of shit.

He grabbed granddad, spun him in the classic “law enforcement pirouette,” and cuffed his hands behind his back before he could say, “Wh-wha-what?!” and — these are my client’s words — “slowly, almost gently, began to lower” him to the ground, holding onto the cuffed hands.

Imagine that.

No, really. Imagine that. You’re an old 70ish man, being “gently” lowered to the ground — for the first time in your life — slowly, as your hands are stretched out behind you, held by the young uniformed goon who has attacked you for no explicable reason.

Oh, but it’s not over.

For an equally inexplicable reason, another man young goon suddenly comes running out of the darkness. (I may have neglected to mention the stop occurred at night, which adds only slightly to the terror of the incident….right.)

The man young goon yells, “I’m an off-duty CHP [California Highway Patrol] officer!”

And that’s when the boot comes down.

Because apparently the slowness — “gentleness” (?!), remember, is actually how my client described it — with which the original officer young goon was lowering him to the ground was misinterpreted by the off-duty officer young goon as “resistance.”

My client’s booking photo is beautiful. Too bad I don’t do civil law. I hope he’s able to find a good attorney for the lawsuit I’ve suggested he consider filing.

But I digress.

Because I’m disgusted.

So I came to meet this client because he received a letter in the mail telling him that a warrant has been issued for his arrest. Because he failed to appear to answer for the charge of violating California’s “contempt of cop” laws. I’m hard-pressed to find the contempt of cop in the above, where my client refers to his being “gently” lowered” to the ground by his cuffed hands, but for whatever reason, my client was charged with our standard “resisting arrest.”

Nobody knows what he was being arrested for, mind you, but whatever it was, he was “resisting” it when the boot came down. Perhaps because he enjoyed the gentleness of the lowering too much.

Actually, we criminal defense lawyers know what really happened: the boot, which shouldn’t have, came down — an off-duty buttinski boot — and now the client has to pay for it.

So he was arrested, and released.

The jail paperwork shows no pending court date: the section wherein it should have been written is inexplicably blank.

Probably my client’s fault. Like the fact that he was lowered to the ground too-slowly by Cop A, forcing off-duty Cop B to put the pedal to the…well, fortunately, no plates were needed, so it’s not metal. Not yet. But the man still has a decade or two left to defy them by not falling fast enough, so let’s withhold judgment on that one.

Being as he had no court date, he naturally didn’t show up for court, compounding his current misdemeanor for resisting arrest. The perfectly legal arrest for the crime of…uh…um…oh, yeah, resisting arrest.

Wait. Where’s the beef?

I don’t know. What I do know is they won’t put him on calendar, because his bail was forfeited when he failed to appear for the court date which was never set. And according to the judge’s order, if you wish to get put back on calendar after failing to appear and having your bail forfeited — even if it’s because you never had a court date — you have to pay an extra $100. And, of course, until you appear — even if this $100 extortion fee has been paid — your warrant is still outstanding.

There’s just one problem: no one can produce a copy of the alleged order of the alleged judge (who now sits on the District Court of Appeal, so you know where complaining about this is going to get you).

There is no such order.

But, you know, the county is kinda hard up for money, so they gotta get it where they can. And they can get it by telling you that you will be arrested if you don’t show up for the court date that they don’t tell you about when they don’t provide you with the notice about the date which isn’t really set — or is it? — we just don’t know what to tell you except that you need to cough up more money.

And then I went to Hanford.

A couple of years ago, Hanford built a new jail. And according to the jailers in Hanford, they “forgot” — I swear they actually used that word — to build rooms for attorney-client interviews. At the time, I had a client who was charged with first-degree murder and was facing the death penalty. (It did not end that way. And although my client considered what happened a “win,” neither me — nor, sadly, his family — agreed. Although he ended up unstiff, as to my bill which was only partially paid-up-front, I was stiffed.)

First-degree murder, particularly a planned-for-weeks-gang-murder like this one is quite a serious crime — more so even than resisting arrest for…um…well, whatever.  And — even in California where we spend millions of dollars not to carry it out (thank god; I’ve never wanted to be a party to murder, states-sponsored or otherwise) — it carries quite a serious penalty.

Because even if it turns out not to be an actual we’re-going-to-kill-you-possibly-painfully death sentence, it’s still a you’ll-spend-the-rest-of-your-life-in-prison-thinking-we-might-kill-you sentence.

And Hanford had this really nice clean new jail.

With no attorney-client interview rooms.

Because they “forgot.”

So, first, I was told that there was no way to allow an attorney-client-privileged contact meeting with my client.

I could, however, use the fancy new videoconferencing system — nothing like having a little videotaped set of admissions, eh? — which the general public sitting right next to me was permitted to use to communicate with their loved one, sitting right next to my client.

I refused.

Perhaps you can understand my position.

The Kings County Sheriff’s Department did not.

Therefore, I was forced to file motions (yes, I really did; several, before they were ultimately granted — though my favorite was the “Motion for Fair Trial” which was (I kid you not) denied — you haven’t lived until you’ve heard a judge pronounce in open court “The defendant’s motion for fair trial is denied”) to obtain access to my client in as-close-as-we’re-gonna-get-to-attorney-client-privileged-meetings-as-possible as I was going to get.

But they wanted me to sign a release.

If, in any way, whether caused by my client, or by “slipping on a puddle” (i.e., I pissed off the deputy on duty), or some other unknown cause, I was to be injured, neither me, nor my “assigneds,” nor “heirs” (nothing ominous there, really), were to be rewarded one single penny.

I refused to sign.

That did not go over well.

The officer on duty the Night of the Final Resolution actually refused — seriously, he said, “that means nothing to me” — to honor a court order granting me access to my client.

The next day, the judge agreed with me, in front of the Sheriff’s attorney, that it might be necessary to order my client to be brought to McDonald’s to meet with me to ensure at least the possibility of an attorney-client-privileged visit.

I kid you not.

The bottom line is that things were ironed out and I did not sign their fucking form and my client received representation on a death penalty case which ultimately resulted in an agreement whereby my client will be younger than I am now when he is finally released.

Call that what you want: I call that a win.

But today I went back to Hanford.

A lot has changed in the last couple of years. The Kings County Jail, Hanford Edition, has two new rooms for attorney-client interviews. Complete with large glass partitions and their own phones with no family members sitting next to the attorneys and no other accused-persons-equally-deprived-of-rights seated alongside the attorneys’ clients.

They still want you to sign the form, though.

And I didn’t.

Which caused a real problem.

For a minute.

But, just as I and the judge two years ago explained, that’s what California Penal Code section 825, subsection (b), appears to be made for.

Ultimately, I was allowed a contact visit with my (handcuffed) potential client. But the problem here — just as the problem of my client in Madera County being required to pay a “fee” that has apparently never been legally authorized by any judge — would have been nipped in the bud long ago if any criminal defense attorney had simply asked, “Why?” and refused to accept “Because” as an adequate response on day one of the “policy” being implemented. And if that didn’t work, then the second criminal defense attorney to encounter the policy should have joined in.

Unfortunately, most of the attorneys never got to “because,” since they never asked “Why?”

What. The. Fuck?!?!?!

If you ask me, the path to our next Revolution is, first, we kill all the lawyers.

Unless, of course, when you’re about to pull the trigger, one of them asks, “Why?”

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A couple of days ago, the Visalia Times-Delta, which is apparently a newspaper intended as a local daily equivalent to the National Enquirer, or some other piece-of-crap rag, trumpeted the complaint that a new “[l]aw frees some violent inmates.” Of course, you can’t completely blame the Times-Delta for the sensationalism on this story: it’s a slight modification of the headline accompanying the online version of the yellow journalism of the AP story.  Like the Bee story, by the way, the online AP story is dated one day earlier than the print version.

Both stories demonstrate the effects of budgetary meltdown; both hint, at least inchoately, at the cause: too many crimes (thus too many criminals) and all our money is being spent on prisons instead of providing education so people will be less likely to commit these crimes.  This is a non-sustainable path to anyone’s idea of a better society.  We simply cannot keep building and staffing prisons, no matter how badly we want to create new jobs.

The big problem is that the Slashbucklers, who aim to deal with the problem by increasing spending on law enforcement, crime labs and prisons (but not lawyers for the indigent or more judges) instead of schools and other “social” programs, are only going to make it worse.  Inevitably — and this is why I’m calling them Slashbucklers — they will bring all our systems crashing down.

Ironically, the Slashbucklers who will destroy us and our justice system are readily identifiable primarily because of their alleged “Law & Order” stance.  And, no, I’m not talking about the television show, although, perhaps not coincidentally, studies have shown frequent watchers of forensic and crime dramas “are more likely to overestimate the frequency of serious crimes” and “misperceive important facts about crime.”  (Amy Patterson Neubert, “Researchers rest their case: TV consumption predicts opinions about criminal justice system” (October 28, 2009) Purdue University News.)

“This kind of television viewing can lead to ‘mean world syndrome,’ where people start to think about the world as a scary place,” Sparks says. “Some people develop a fear of victimization, and this belief can affect their feelings of comfort and security.”  (Neubert, supra.)

The people I’m talking about are those who think the problem is that we need more funding for law enforcement, more funding for crime labs and then, just to make sure the cycle remains unbroken, more funding for prisons.  Like swashbucklers, slashbucklers see themselves as saviors, “rescuing society from the clutches of a dastardly villain,” the criminally-minded and “wasters” of government resources.

Forgive me, but I have to let myself be sidetracked here.  I can’t get over the irony of referring to forensic laboratories as “crime labs.”  If the Fresno Bee story is to be believed — and for a change it appears that perhaps it could be –

The stress and strain of trying to meet the demands of court has resulted in sacrificing quality for quanity…. This is evident throughout … and possibly provided the opportunity for evidence tampering and abuse of the evidence control system.

In other words, it really is a crime lab.  Just as pharmaceutical labs create more new drugs for the market, the crime lab creates more new crimes and criminals.

Meanwhile, at any rate, a little education would ameliorate all these problems.  But our society seems less and less willing to provide that.

I suppose there’s no surprise there: the less education people have, the less use they have for education.  And while I do not subscribe to the belief that all poor people are stupid, being stupid does predispose one to difficulties making a living wage.  It also makes one a crappy citizen, less able to participate — intelligently — in the democratic process.  (Unfortunately, it won’t stop them from voting.)

The less money people have, the less willing they are to see it taxed, even to improve educational systems.  Besides, locking people up creates more jobs (police officers, correctional officers, lawyers, judges, clerks, builders of prisons, planners, paper-makers, etc.), while simultaneously removing large numbers — almost two-and-one-half million in the United States — from the job market in which other stupid people compete.

So the circle is simultaneously completed and sustained.

One of these days, though — I’ll cling fervently to this hope until the day I die — we’re going to realize, as a society, that funding education is more productive than funding prisons and courts.  We’re going to stop the criminalization of normal primate behaviors that, left alone, would harm fewer people than they do when we criminalize them.  We’re going to find that this will reduce the need for crime labs, correctional officers, judges, lawyers and other wasted resources.

I want to see the day when teachers are paid more than police officers.  Where kids are taught to value learning and provided with the tools to learn.  Where we recognize that “Law & Order” are the natural consequence of producing people who can actually believe that they have something to lose by not committing crimes instead of creating situations in our communities, our prisons and in our ‘crime labs” that encourage their commission.

I’m looking forward to the day Slashbucklers are seen for what they are: poseurs who, rather than “rescuing society from the clutches of a dastardly villain,” are more often the villains from whom society needs rescuing.

Comments

• May 26, 2010, The Scarlet Letter & Other Tales Of Woe | Fresno Criminal Defense writes: [...] trivial crime resulting in life in prison.  I’ve already written elsewhere about the impact this has on our [...]

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“Corrections,” an ironic misnomer, has jumped from less than $5 billion a year to more than $10 billion [a year] in the last decade, more than twice as fast as school spending, the biggest budget item.  It now costs about $45,000 a year to feed, clothe and medicate each of the state’s 170,000-plus inmates, or roughly five times what taxpayers spend on a typical public school student.  And that doesn’t count what it costs to supervise tens of thousands of parolees.

Frankly, this is ludicrous.

Walters goes on to recommend “shedding some low-intensity inmates” such as drug users and drunk drivers by transferring them to locally-run treatment programs.  Those programs would be funded by raising taxes, because Californians don’t pay enough already.

I have a better idea.  How about we recognize that our draconian system of rules — particularly our beloved Three Strikes legislation — is not only a bad way to approach the treatment of human beings with problems, but is also bankrupting us?

One woman I know of, for example, has (had?) an addiction to methamphetamine.  “Debra” was once the victim of domestic violence, yet somehow ended up being convicted of assault with a deadly weapon on the spouse who used to abuse her.  Under California’s law, this is a “strike.”

After she was found to have three-hundredths of a gram of metamphetamine on her during a probation search, she ended up being convicted of possession of a controlled substance and was subsequently sentenced to thirty-two months in prison.  Thirty-two months.  For three-hundredths of a gram.  Do you know how much that is?  You can hardly see it, it’s such a small amount!

The actual sentence for the three-hundredths of a gram of which the court handed down was 16 months; what used to be called “the mitigated term.”  However, because of her prior strike, the sentence was doubled; in this case, 16 months became 32 months.

Meanwhile, I have no idea if the Debra’s addiction will be helped by prison.  After all, our system isn’t about rehabilitation.  And prison guards smuggle the stuff in, because they’re so grossly underpaid.

The Three Strikes law has resulted in an explosion in California’s prison population.  “Since 1994, the courts have sent over 80,000 second strikers and 7,500 third strikers to state prison.”  California now houses more prisoners than France, Great Britain, Germany, Japan, Singapore and the Netherlands combined.

California’s Three Strikes legislation basically says that someone with a “strike” — serious and violent felonies — who gets any felony after that will have the sentence for the new felony doubled; someone with two prior strikes will go to prison for life if they commit any felony.  By “any” felony, this means even those that are not violent or serious.  For example, Debra with the three-hundredths of a gram of meth would have gotten life in prison if she had two prior strikes instead of just the one.

And so, as noted above, the numbers of California citizens in prison has dramatically increased.  But the numbers at any given point in time only tell part of the story.

Remember, someone with two strikes goes to prison for life, no matter how small the felony.  Also remember, the original sentence for the three-hundredths-of-a-gram case was a mitigated term of two years.  But someone with three-hundredths of a gram of meth and two strikes could — and sometimes does — get life in prison.  (Judges can “strike the strike,” making it “not count” for a particular case, but they don’t have to and many, like the one who sentenced Debra, refuse.)

As Dan Walters noted, it costs an average of $45,000 per year to keep someone in prison.  So a two-year sentence costs $90,000.  But when that person is in their twenties, has two strikes and the judge refuses to strike the strike, now we’re talking some real money.  Assuming she lives “only” 20 more years in prison and assuming the costs of keeping her there never go up, the price tag goes from $90,000 to ten times as much, or $900,000.  That’s nearly one-million dollars to lock someone up for what is basically a minor crime.

Meanwhile, California, “off the charts compared with other states in corrections spending,” is cutting school spending.

It’s not just our prison and justice systems which are out of whack here.  Californians’ priorities are in need of a major correction.

Comments

• February 1, 2009, Jo Nathan writes: Not only are the financial implications of criminal penalties ludicrous, the idea that increased penalties somehow increases "rehabilitation" is not supported by evidence. What is it, an 80-90% recidivism rate? Any serious enterprise, such as a business or engineering operation would certainly be trying to find better ways to solve the problem. Only the government, who spends other people's money, and generally is not accountable can get away with persisting with a non-working system, when there is little evidence that incarceration works as a deterrent. Especially given that more than half of people incarcerated now are not violent offenders. My bet is that incarcerating those people just reinforces in their minds the that the criminal justice system is a joke and a game. How does this increase respect for the law and its observance?
• February 1, 2009, Frank Courser writes: It is unfortunately true that we allow such convictions. I also know a woman convicted and sentenced under Three Strikes. In 1989 she was with a boy friend that broke into three houses. Although she never entered the dwellings, she was an accessory. This was 5 years before Three Strikes was enacted. Ten years later in 1999 she also was found to have .09 gram of meth. That was strike three, and she was sentenced to 25 years to life. It would have been far cheaper to place her in rehabilitation even if she failed several times. She is going on her 10th year in prison at a cost of $42,287.00 dollars each year. Tax payers will have spent over a million dollars to keep her in prison after 25 years. For simple drug possession! Because of the rules of the California Department of Corrections, she is not eligible for the substance abuse program until 2 years before her date of parole. She will wait 23 years to be treated for her addiction.
• February 2, 2009, Madhatter writes: Excellent article. The FACTS for a change. It's refreshing. Now, if someone could just figure out how to RE-educate Californians, especially the Legislator and the Governor, things just might get back on the right track. If California remains in the current downward spiral, it will not long survive. Not only are the wrong budget items being cut, the ones that should be cut are being left alone, starting with the legislators and their "perks".
• October 24, 2011, Amy Rupe writes: I wonder if California has followed suit with many other states in regards to "privatisation" of our correctional facilities. If that is the case, it makes perfect sense why it doesn't work and why nothing is ever done to address the issues. A privately owned prison would be a cash cow! Make the inmates work for next to nothing to benefit the all mighty corporation! The whole system is flawed and utterly corrupt and I suspect it will remain this way until we get back to following the constitution AS IT WAS WRITTEN in 1776...not the swiss cheese version in use today...full of holes.

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