There are times in our lives where we have to convince someone of something. I think this is an art we begin to cultivate as a child. Back then our wants are so many, but we don’t get to pick so we learn how to compromise, promise, sweet talk. As we get older and learn the nuances of the world (or of the people we want to influence) we refine this skill. We use words that we know resonate with the person, we appeal to their values and emotions. Then we learn logic (well, some of us do) and we try to appeal to that.
As time goes by, most of us settle into jobs or lifestyles which don’t demand too much persuasion, unless you are asking for a raise or looking for a job, or want a girls’ weekend away. Then you probably gather enough facts to support your position, or cry and say “but the kids are making me crazy and I really need a break.” But for the most part we plug away at the task at hand.
We over here on this side don’t get to do that. Our entire universe is built on persuading people do to kind things for people who have done unkind things. This, my friends, is a formidable task as much in reality as it seems on this page. In an ideal situation, our clients have been changed from the time they were arrested and ultimately and unfortunately convicted, so much so that the person we are trying to persuade (the judge in most cases) is moved by our arguments. Our clients have helped us by maybe getting a job, finishing school, reuniting with family members (this is actually more important than you might think) or just generally not acting in the way they were before.
Most of the time, though, this isn’t the case and we are left trying to persuade based on the rightness of the thing. Yes, our client admitted to selling drugs, but is a 10 year prison sentence just? Will it serve our society to just lock him away and take him away from his family and his environment and all that he knows? Well, during the heyday of the war on drugs, the answer to this was a resounding YES! Lock them all up. And in order to make sure that no one was able to persuade a judge to look inside himself, to actually believe that this person he was about to warehouse was a human being, Congress instituted mandatory minimum sentences taking discretion away from judges and forcing them to sentence people to what Congress decided what fair and just.
This is still the case. There are still mandatory minimums that are reserved primarily for drug offenses. And our job is to persuade the world that this isn’t fair. We dig deep into our toolbox for this. We sometimes quote Burroughs (I’ve done Naked Lunch and Junky so far) or Les Miserables. We look at the statistics on recidivism and quote those as well. One time I quoted a statistic for a client who was black with no criminal history facing a 5 year mandatory minimum. I told the judge, who was black, that the only reason for any increase in the percentage of his rate of recidivism was because he was black. The judge said “well sometimes those statistics lie and aren’t accurate” and then continued to sentence him based on the guidelines that cite those very same statistics as support.
Whew, this post is super legally isn’t it? Yeah, well, suck it up. Sometimes it’s good for you to just know how this goes. You think your judges are there listening to both sides and then imposing a sentence that is most fair not just to the person in front of them (sentence the person, not the crime) but to society as well. They are the ones who know the case, the players and really at the end of the day, they know exactly how many people have been harmed by these laws.
I still get up and do my job even in situations where it may seem to make no difference. I beg and plead sometimes. I say “come on judge, you know this isn’t right.” We cite statistics (people with strong family support do better overall than those who don’t. Which is why we like to pack a courtroom for every court event.) People who have jobs do better (but how do you find a job once you are a convicted felon?) People who are white with a good education do better (yup, that’s an actual statistic in case you are wondering about sentencing disparity along racial lines.)
There is a veritable laundry list of things we talk about during sentencing. We love it when our clients help us help them, but sometimes it doesn’t work out that way. And then I want to resort to tactics I relied on as a kid – call the judge a big meanie head, take my toys and go home. But instead I stand there next to my client and do the best I can. And hope that someday we will fix this madness.
