I happened to walk past the TV as a 48 Hours episode was ending. Because of my increased awareness of the extreme differences in sentencing I took note of something I had not really listened to before. Two folks in different states were dead as the result of property crimes gone wrong (a home invasion robbery and a car jacking) but the sentences in one instance were 25 and 30 years and the other was 5 and 7 years though each occurred during the commission of a crime. Was one person more likable than the other? Better or less well educated? More or less valued by their families?
Several things contribute to an increasingly irrational and frightening trend in sentences that tend to make people trust the legal system less because it is experienced as increasingly capricious and inexplicable.
1. Who arrests you matters. The same offense investigated and charged at the local level could have sentencing guidelines that vary by two to three times. For people who have been caught in the pornography marketers web come ons ignorance can be costly: if a website or Craig's list contact tells you that what they are selling is "within legal limits" it is not necessarily true and EACH frame of a video clip is a separate charge at the federal level. At this time federal offenders are receiving higher sentences for e-crimes than local folks are getting for who actually have had contact with a child. Wives who have trusted husbands to handle family finances can be charged if funds from an illegal activity (whether that is fraud or a drug connection) if "dirty money" has been deposited in a joint account they used to pay household bills. This is often done to give prosecutors leverage to get a spouse to "flip" even when there is no evidence that the spouse has anything to "sell". This can result in a savvy co-conspirator negotiating a lighter sentence than the clueless mom watching her kids being sent into foster care.
2. How the offense is calculated matters. If a person burglarizes your house while you are away (purely a property crime) and you are a person of influence in your community and are deeply upset, the prosecutor may add things like "possession of burglary tools" and "trespassing" to the charges in order placate someone they perceive as "important" or to leverage the process or to use plea bargaining to polish their conviction record. A less attractive offender may also evoke a harsher response such as someone who is poor, homeless, fresh out of foster care or unemployed. This in turn confuses people who learn that when their personal burglar was sentenced it was for a much lower time even though they had learned it was a multiple offender and so a sense of unequal justice is born in both in the victim and in the family and friends of the offender. Most of the "extra" charges were originally enacted to allow folks to face charges if apprehended BEFORE actually breaking into a home, but are now used in a destructive game stacked in favor of those with resources for attorneys, bail, fines, rehab, classes and restitution.
3. Who you are matters. We want to believe this on one hand but every day attorneys advertise to assure us that we dare not speak with an insurance company or handle a traffic ticket without their help. A "simple" charge with a single hearing and dismissal can easily run up a $5,000 legal bill. For a serious crime where professional help in running down records and witnesses can easily run to six figures quickly. So, until we have National Legal Care, folks who have the money go to driving class or drug court have a very different experience than people without who sit in jail because they can't even make bail. It feels like the correlation between the number of attorneys in the halls of state houses and Congress may be affecting how important clarity in legal statues, regulations, rules et al is to those who make the laws.
4. Police officers and deputies have little if any input in what happens at the prosecutor's office. They may see a child as needing to be removed from a parent to another family member for a time because they know the people and community involved. But the prosecutor may see someone whose parent is irritating or whose legal aid advocate is not meeting deadlines. The prosecutor's perspective prevails. Additionally I believe many in the proprietorial and judicial systems prefer to ignore the part they are playing in the growing problems; I'm pretty sure that if their college student is picked up DUI a very small number ever spend the weekend in jail as a result. Recently, amid a growing scandal of assaults of both COs and accused offenders/low level offenders by unsegregated violent offenders awaiting trial or transport, increasing lawsuits for unsafe conditions for jail staff and those incarcerated, and terrifyingly inadequate medical care resulting in severe injuries and deaths of people being held at the jail (80%+ have not been adjudicated but neither they nor their families can pay bail, or they have been convicted of misdemeanors but are not able to come up with the cash to pay court costs or fees or fines. This can result in children being added to an already overcrowded foster care system.) Yet one of our local judges was quoted as saying, "We even have to adjust our schedules when there are not guards available to transport prisoners." If he walked across the street he might realize this is a much bigger problem than he seems to perceive. Earlier this month an already dangerously understaffed jail experienced a 25-person "outage" making conditions even more than usually dangerous. Of course, those incarcerated there are not able to call in for a mental health day. And even when a citizen is found innocent they are often have no voice when they seek to advocate for reforms.
Every year members of governmental agencies, in state Houses and Senate halls, in our national's Congress people seeking political power feed the nonsensical notion that if we make a thing illegal it stops happening. As a result new laws are passed without thoughtful consideration of how other laws are affected, if other laws should be amended or recodified or rescinded and a change in federal law can take a long time to seep down to Two Egg, Florida. Personally I'd like to find candidates who promise to write no new laws, to only clarify, repair and recodify the millions of rules, regulations, laws, court case precedents and rulings to attempt to make the law possible to obey.
Mens rea, the requirement that there is intent to harm, is too often being replace with the "make an example and other people won't do this." But with the millions of rules (just think of the tax code with books of statues, Revenue Proclamations trying to clarify the law, Letter Rulings trying to address whether or not a particular course of action might or might not be illegal/actionable and the Tax Courts, the U.S. Courts of Federal Claims, District Courts and Bankruptcy Courts and the U.S. Courts of Appeals findings and rulings. And that is JUST the federal tax code. Now add the tax rules, laws and regulations in 50 states and the District of Columbia) it is frustrating for citizens. People often are so worried about "getting into trouble" knowingly pay higher taxes than the law provides, or lacking the financial resources to defend themselves, allow a disallowed deduction to stand because it is too expensive to fight what may be only a poorly trained examiner. While even trained legal professionals have trouble giving a clear response when a question is asked (have you ever emailed the IRS with a question?) people at all levels of literacy and education are held accountable for errors of both omission and commission.
So we are coming far too close to a nation where if anyone looks hard enough at anyone else they can probably find a mistake and if the person looking has "clout" and person being looked at does not, they are truly in a mess.
I suggest we ask our representatives and senators regularly what they have recodified or rescinded recently in the interest of moving toward a more just society.
Several things contribute to an increasingly irrational and frightening trend in sentences that tend to make people trust the legal system less because it is experienced as increasingly capricious and inexplicable.
1. Who arrests you matters. The same offense investigated and charged at the local level could have sentencing guidelines that vary by two to three times. For people who have been caught in the pornography marketers web come ons ignorance can be costly: if a website or Craig's list contact tells you that what they are selling is "within legal limits" it is not necessarily true and EACH frame of a video clip is a separate charge at the federal level. At this time federal offenders are receiving higher sentences for e-crimes than local folks are getting for who actually have had contact with a child. Wives who have trusted husbands to handle family finances can be charged if funds from an illegal activity (whether that is fraud or a drug connection) if "dirty money" has been deposited in a joint account they used to pay household bills. This is often done to give prosecutors leverage to get a spouse to "flip" even when there is no evidence that the spouse has anything to "sell". This can result in a savvy co-conspirator negotiating a lighter sentence than the clueless mom watching her kids being sent into foster care.
2. How the offense is calculated matters. If a person burglarizes your house while you are away (purely a property crime) and you are a person of influence in your community and are deeply upset, the prosecutor may add things like "possession of burglary tools" and "trespassing" to the charges in order placate someone they perceive as "important" or to leverage the process or to use plea bargaining to polish their conviction record. A less attractive offender may also evoke a harsher response such as someone who is poor, homeless, fresh out of foster care or unemployed. This in turn confuses people who learn that when their personal burglar was sentenced it was for a much lower time even though they had learned it was a multiple offender and so a sense of unequal justice is born in both in the victim and in the family and friends of the offender. Most of the "extra" charges were originally enacted to allow folks to face charges if apprehended BEFORE actually breaking into a home, but are now used in a destructive game stacked in favor of those with resources for attorneys, bail, fines, rehab, classes and restitution.
3. Who you are matters. We want to believe this on one hand but every day attorneys advertise to assure us that we dare not speak with an insurance company or handle a traffic ticket without their help. A "simple" charge with a single hearing and dismissal can easily run up a $5,000 legal bill. For a serious crime where professional help in running down records and witnesses can easily run to six figures quickly. So, until we have National Legal Care, folks who have the money go to driving class or drug court have a very different experience than people without who sit in jail because they can't even make bail. It feels like the correlation between the number of attorneys in the halls of state houses and Congress may be affecting how important clarity in legal statues, regulations, rules et al is to those who make the laws.
4. Police officers and deputies have little if any input in what happens at the prosecutor's office. They may see a child as needing to be removed from a parent to another family member for a time because they know the people and community involved. But the prosecutor may see someone whose parent is irritating or whose legal aid advocate is not meeting deadlines. The prosecutor's perspective prevails. Additionally I believe many in the proprietorial and judicial systems prefer to ignore the part they are playing in the growing problems; I'm pretty sure that if their college student is picked up DUI a very small number ever spend the weekend in jail as a result. Recently, amid a growing scandal of assaults of both COs and accused offenders/low level offenders by unsegregated violent offenders awaiting trial or transport, increasing lawsuits for unsafe conditions for jail staff and those incarcerated, and terrifyingly inadequate medical care resulting in severe injuries and deaths of people being held at the jail (80%+ have not been adjudicated but neither they nor their families can pay bail, or they have been convicted of misdemeanors but are not able to come up with the cash to pay court costs or fees or fines. This can result in children being added to an already overcrowded foster care system.) Yet one of our local judges was quoted as saying, "We even have to adjust our schedules when there are not guards available to transport prisoners." If he walked across the street he might realize this is a much bigger problem than he seems to perceive. Earlier this month an already dangerously understaffed jail experienced a 25-person "outage" making conditions even more than usually dangerous. Of course, those incarcerated there are not able to call in for a mental health day. And even when a citizen is found innocent they are often have no voice when they seek to advocate for reforms.
Every year members of governmental agencies, in state Houses and Senate halls, in our national's Congress people seeking political power feed the nonsensical notion that if we make a thing illegal it stops happening. As a result new laws are passed without thoughtful consideration of how other laws are affected, if other laws should be amended or recodified or rescinded and a change in federal law can take a long time to seep down to Two Egg, Florida. Personally I'd like to find candidates who promise to write no new laws, to only clarify, repair and recodify the millions of rules, regulations, laws, court case precedents and rulings to attempt to make the law possible to obey.
Mens rea, the requirement that there is intent to harm, is too often being replace with the "make an example and other people won't do this." But with the millions of rules (just think of the tax code with books of statues, Revenue Proclamations trying to clarify the law, Letter Rulings trying to address whether or not a particular course of action might or might not be illegal/actionable and the Tax Courts, the U.S. Courts of Federal Claims, District Courts and Bankruptcy Courts and the U.S. Courts of Appeals findings and rulings. And that is JUST the federal tax code. Now add the tax rules, laws and regulations in 50 states and the District of Columbia) it is frustrating for citizens. People often are so worried about "getting into trouble" knowingly pay higher taxes than the law provides, or lacking the financial resources to defend themselves, allow a disallowed deduction to stand because it is too expensive to fight what may be only a poorly trained examiner. While even trained legal professionals have trouble giving a clear response when a question is asked (have you ever emailed the IRS with a question?) people at all levels of literacy and education are held accountable for errors of both omission and commission.
So we are coming far too close to a nation where if anyone looks hard enough at anyone else they can probably find a mistake and if the person looking has "clout" and person being looked at does not, they are truly in a mess.
I suggest we ask our representatives and senators regularly what they have recodified or rescinded recently in the interest of moving toward a more just society.
RSS Feed
