This isn't anything new - but what I take issue with is why such an antiquated method of branding remains a viable (not-so-viable) option for our Criminal Justice System. This blog poses the question and seeks to answer, "Who really benefits from a criminal conviction?"
I'll give you a hint: it's not defendants.
My practice constantly faces opposition on creative and fresh takes to an otherwise stale administration of justice. We recognize that the court has limited resources and try to accommodate the court by presenting an individual who has made leaps-and-bounds, by taking responsibility for their actions and demonstrating to the court that they have the ability to make better choices.
Here are the 2 classic examples of "Scarlet Lettering" and how I address each scenario:
#1. "No Reductions, No Exceptions." What does that even mean? It means that the Prosecuting Attorney's Office has established a policy - when in fact, to do so, would be unconstitutional. Nevertheless, because you're too old, too poor, too sick, or just plain unlucky, the Prosecutor on your case may inform you that there's "simply nothing you can do." Well, that's a load of garbage.
- RESPONSE: Let's go to trial. You've been given zero incentive to give up your Constitutional rights, so don't. You have the right to be proven guilty by a jury of your peers with the highest standard of proof available in a court - beyond a reasonable doubt. So, why, then would you give up that right, if not in exchange for individualized treatment? It should matter whether it is your first encounter or your fifth. It should matter whether you have underlying conditions that prompted your bad behavior. It should matter what your home life is like. It should matter what your community role has been. But, unfortunately, a policy against individualized consideration treats all offenders the same. This problem won't get better until our community, our state, and the members of our justice system acknowledge that, "no offers, no reductions, no exceptions," is too expensive of a proposition to maintain.Trials are expensive for both litigants and taxpayers. In turn, the system would not be able to support the volume of litigation and the taxpayers would not support a policy that costs more money with even less return on the investment.
- Solution: In lieu of trial (and an all-out-war), many prosecuting attorneys will afford you the opportunity to request a Deviation from the original charge to a lesser, more favorable charge. Let me rephrase that: some prosecutors will allow you to write a request for a Deviation - which their "boss" reviews and decides whether or not to grant your request. Deviation letters can be effective tool of negotiation - as well as a wasted effort that never had any real chance for success. What makes the difference between the two is knowing the players up the chain of the command. What criteria would they be looking for to extend the consideration you're asking for on this particular case? This is where my strength comes in as your attorney and advocate.
#2. "Three Strikes You're Out." You can thank America's Greatest Pastime for giving the members of the Criminal Justice System an archaic, arbitrary, mantra - that some how assumes every life scenario gets 3 chances to get it right. I commonly hear the complaint, "she's already done the education ... he's already done the treatment ... What more can I have you do?"
- RESPONSE: I get it, according to the blue print handed down from your predecessor, we can only do so much to try and "help" before exhausted resources translates into end-of-the-line incarceration. BUT, this is what's so WRONG with assuming problems, behaviors, mental diseases can be "fixed." The court struggles to find an "ON" and "OFF" switch for each offender - because there isn't one! Judges scold litigants for relapsing and re-offending, then someone expect this person to articulate WHY they keep "screwing up."
- Example: Judge, says: "I told you not to drink and you still did it!" - There's a long line somewhere of all the people in this person's life who they've let down. Go ahead, take a number and start practicing your, "I told you so's" - you won't make a difference.
- Solution: Lawyers are important to help tell a client's story - but many lawyers just don't take the time to understand the story they're enlisted to tell (or just don't care). Just because you may not "qualify" for any of the preferential programs (e.g., HYTA, 7411, 771.1) created by our legislature to combat the very same scenario, the only alternative should not be a criminal conviction, a record, a Scarlet Letter for the whole world to know you as a Criminal.
- There should be more programs available for first-time offenders, repeat-offenders, addicts, abusers, risk-takers, juveniles, veterans, and so on. Instead, it's taken decades for the courts to reopen their services and take on new initiatives. Meanwhile, in walks Attorney Kelly and his client came prepared. Out of available programming, facing a 4th strike - what hope does that person have that justice will truly be just and fair? Little to none; but by following my Michigan Proactive Defense, my clients will always have a safety net.
If we are attempting to rehabilitate and return offenders to the community, then there is no real beneficiary to a Criminal Conviction - it's a false sense of security, that forces the offender to carry his misdeed to the grave.
TAKE AWAY: Not all offenses should qualify for community-based corrections. Fortunately, the guess work has already been taken control of by the courts, in separating lower-level offenses like property crimes from more serious offenses against a person. But, certainly, all offenders should have some programming available to assist them - even if that cannot be done in a community-based setting.
At some point, the vast majority of offenders will be returned to society. Unfortunately, "prosecutor policies" and "3rd strikes" carry the same collateral consequences of actual incarceration. You don't need a Prisoner ID # to feel the stigma of your Scarlet Letter.
Don't let it happen to you. Call Kelly.