This evening’s substantive post (and by substance I simply mean not writing about my writer’s block. Don’t expect to actually learn anything tonight) is inspired by one of my all time favorite books, Alice in Wonderland:
“Would you tell me, please, which way I ought to go from here?
“That depends a good deal on where you want to get to.”
“I don’t much care where -”
“Then it doesn’t matter which way you go.”
It’s sort of like trial work, right? When you prep for trial you start at the end – go to your jury instructions and figure out what needs to be proved and work your way back. Since you know where you want to go (not guilty no way!) you can figure out how to get there. If only all the rest of this law stuff was that simple.
In federal court you have a few options in trying to get out from under congress’s penalties called mandatory minimums. What this means is that if a person is convicted of a particular crime that carries one of these mandatory minimums the court HAS to sentence them to at least that much time even if they don’t think the person should get that much time. In those cases, the judge has no discretion except in two instances. A person who has no criminal history can go to the government, confess their sins, and get out from under these mandatory minimums and the judge can sentence him or her as he sees fit. A person who cooperates with the government (to their satisfaction, of course) can hope the prosecution will make a motion that will get them under these mandatory minimums. The problem in both of these cases is that while you know what your goal sort of is (lessen your client’s exposure) you are stuck playing both sides of the fence and feeling your way around. The direction you need to go is so much less clear since the end result is just as blurred.
Here’s the thing, our system right now is designed for pleas. We don’t try cases because the risk to our clients is so severe. We plead people out not because WE are afraid to try cases but because we are afraid for our clients. Lord, who doesn’t love the client who says fuck it, let’s roll this thing and can then take their licks at the end? But it’s simply not feasible. Sure, we have dreams of let’s all band together and take every one of these cases to trial and then THEY WILL REALLY BE FUCKED. But which of you is willing to let your client be the test case in this brave new world? I’m not. I don’t think any of you are either.
So here’s what happens. Our clients end up turning and cooperating or safety valve cooperating (is there really that much of a difference?) or just doing what needs to be done to stop the onslaught and crush of time that is staring them in the face. We lawyers move this way and that way with no real direction since we aren’t really sure which way to go. There is so much bobbing and weaving and compensating and just plain old everyday ass kissing that goes along with this. And it is soul crushing for lawyers who have faith in their ability to protect and advocate for their clients when they are simply unable to do so because the only thing they know is that they don’t want their client to go to jail for too long. This is not what we went to law school for, is it?
Our system is broken, hopelessly so. We cannot expect prosecutors or judges or anyone else to fix it and we take huge risks when we try to fight the battle ourselves. I’m not sure what the answer is, but I know where I want to go. I just wish I could find a way to get us there.
