Every day it feels like I answer the same question over and over and over again “Mirriam, how can you do it? How can you defend child molesters and rapists?” I am always amazed that no one asks how I can defend murderers (probably because most folks know that some people need killing?) but so it goes.

I am trying to be a bit more social – as I posted about before – and maybe because I seem so normal when I tell people what I do they are sort of stunned. “YOU? But you look so petite and gentle. You have kids. You don’t drink to excess on a regular basis and your shirt is almost never wrinkled.” To which I respond “I know, I know. I am just a fragile gentle flower and my kids are probably going to be okay despite my chosen line of work. And I don’t drink to excess on a very regular basis and I have a good dry-cleaner.” And then I try to play freeze tag or talk about the latest Oprah book or whatever but people will never freaking stop.

And why should they? When what we do is newsworthy and they make tv shows about it and well, there are so many famous criminal defense lawyers these days it just has to be asked about and talked about and you know what, good. I’m glad to do it. But then I get on my soap box. And we all know how that goes.

“Oh, you do it to defend the constitution, right? To make sure people get a fair trial?” Well, um, yes. That’s a part of it.

“You do it because you have to do it since that’s what you swore to do.” Not really, I didn’t swear to defend anyone when I joined the bar.

“You do it because you don’t know if they are guilty but if you knew you would be okay with them getting convicted.” Well, I guess if that makes you feel better.

The answer is no to all of these. I’ve written about why I do this job a million times and I’m not going to do it now. But let’s say I do it because I am a big believer that every single one of us is better than this.

——

This morning I got an email from Jim Wyda who is our Federal Public Defender. I don’t know that I’ve ever met Mr. Wyda, but we on the CJA panel get emails from him regularly. He keeps us as informed as those who work directly for him at the Federal Public Defender’s office. I think I like him and I have worked closely with some of his attorneys and I think they do a bang up job. Anyway, this email was an article from the New York Times about something called “The Mercy Project.”

So here comes our law lesson for the day. Back in the deep dark stone aged days of the federal criminal justice system, otherwise known as pre-2005, the sentencing guidelines we currently use to establish for how long people should go to federal prison were mandatory. What that means is that the court used a chart to decide the sentence. No one cared who you were, what you did, if you were sick, if you were doing well now, if you were ever going to commit this kind of crime again (we have studies for that, you know). No one cared how you grew up or how bad your part in the crime was. MANDATORY. So, folks who committed pretty insignificant crimes went away for long periods of time. No ifs, ands, or buts.*

And then, one day, it changed. The sentencing guidelines were no longer mandatory. Hurrah! Freedom for all small time offenders!!

What? No? Hmmm. . . So, what changed? Well, the courts were free, after the 2005 decision, to fashion a “punishment that fit the offender and not merely the crime.” ” But, what happens to all of those people who were sentenced under the old system” you so wisely ask. Well, unfortunately, nothing. They stay there and languish and wait until the government is satisfied that they have extracted their fair share of flesh. And in walks the Mercy Project. Under this proposed project, lawyers can work pro-bono and try to find ways to get old cases back into court. Once we do that, we can ask judges to reduce the sentences looking at the folks who are physically standing in front of them and all that they are and all they have accomplished. Neat, huh?

I had a chance, recently, to do something like this. I had a case that was sent back to the trial judge for resentencing. I was so hopeful the judge would want to go back and do the right thing. My client had been in prison already for eight years, she’s a paralegal now, she can cut hair. She has helped so many other women prisoners (many came to speak for her at sentencing) and the judge did do what we asked him to do but did not go below the new guideline range. And that happens. Many judges are still reluctant to vary from that chart. It feels safe to them, especially since most appellate courts won’t touch a sentence if it is in that range. And, if you are a lifetime tenured judge – uh, why not be safe (I’m not really sure about that one but maybe that’s a post for a time where I am feeling bold enough to take on the judiciary? Maybe?)

But here’s the thing. Why not give judges a chance. After all, they really are as human as the rest of us and they can have changes of heart and mind too. They can revisit and rethink and maybe sometimes they go home and come back and think it’s ok, what they did is good and right, and maybe eight years later they realize they wanted to do something different if only they could have. If only. Until it is the end of days we have another chance to make things right and why would we not give those human beings who seem to have all the answers all the time the opportunity to do just that? Let them show mercy the second time around if they couldn’t the first.

I don’t know how many judges would do this thing. How many would admit they were wrong and should have done otherwise. But we won’t know until we try.

I do this job for many, many reasons. But mostly for this reason: because there is goodness in each and every one of us. And we all deserve another chance, even you, Judge.

* Butts, heh. Oh, did you expect a cite or some really intriguing footnote?

Also, to read a better written post on Mercy, and the Mercy Project, read Gideon today.