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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
| | The Question that Sparked this Paper
An interviewer posed to me this hypothetical: "How will you handle your work in a case you believe is wrongfully prosecuted? For example, a domestic violence victim who struck back at her abuser." |
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< | I cannot recall my answer as well as the question, though I remember declaring my faith in the integrity of my assistant district attorneys, in the high standard of evidence and persuasion held by the criminal justice system, and the right of all to representation. The question bothered me because soon after leaving I substituted a more likely, and less sympathetic, hypothetical involving a kid getting charged with a litany of offenses on a relatively minor incident, facing several years or life for stealing a slice of pizza. |
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> | I cannot recall my answer as well as the question, though I remember declaring my faith in the integrity of my assistant district attorneys, in the high standard of evidence and persuasion held by the criminal justice system, and the right of all to representation, knowing that the interviewer herself as good as admitted that sometimes they try to make felons and prisoners of people who do not deserve to be treated so harshly. A more likely, and less sympathetic, hypothetical would describe a kid charged with a litany of offenses amounting to years in prison for relatively minor incident. |
| | The Superhero Ideal
As a kid, I did not get to watch a much American superhero cartoons as I might have liked because of Chinese school on Saturday mornings, but I did love the superheroes enough for the idea that the world is made up of heroes and villains to stick. The world of superheroes the evidence is always convincing and heroes never have to struggle to convict against a high standard of proof or have to defend their evidence gathering methods and warn villains against self-crimination. The confessions they obtain are always admissible, and in the superhero world we in Southern California would not have been bewildered by the acquittal of O.J. Simpson. |
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< | The villain escapes mode of injustice, in comparison, was far more prevalent in real life. The New York and Los Angeles Times newspapers probably publish as many stories about successful convictions as about acquittals and successful appeals. Injustice is simply more memorable than justice. |
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> | The "villain escapes" mode of injustice, in comparison, is far more prevalent in real life. Newspapers probably publish as many stories about successful convictions as about bewildering acquittals or prosecutorial laziness. |
| | Are you honestly
suggesting that every acquittal or successful appeal is an instance
of injustice? If that's not what you're suggesting, what did these
two sentences mean? |
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< | I believe that is because we inherently believe in justice, so when justice is done - a murderer is put away, a heinous criminal punished and victims vindicated - we take the result for granted as the due course of nature. |
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> | I believe that is because most citizens (the comfortable, middle class ones with political clout, I should specify) trust and rely on, because we want to and need to, our criminal justice system, so when a murderer is put away, a heinous criminal punished and victims vindicated we take the result for granted as the due course of nature. |
| | I believe in justice,
but I don't think everyone convicted of murder is remotely guilty,
and I don't think any conviction "vindicates" a victim. So could we
go a little more closely over those steps? |
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< | The incidents of injustice are the ones that deeply jar our preferred view of the world and take us farther from what we want the world to be. The convictions are reported without a shadow of a doubt; the evidence is always presented overwhelming. |
| | Blame Politics?
Fear is justified. |
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< | Few are those who have not suffered an unpunished crime or fear of law enforcement's failure to capture neighborhood criminals. My family's car windows have been smashed while parked during daylight hours in downtown Santa Monica. I know of students who have been mugged and worse by standard-description teenagers who have never been charged for those particular crimes, and I know of a group of youths who were caught but released because the victim just did not want to deal with the process and the fear of retaliation. She would have participated if they had sentenced to more than a couple months maximum. Charges would have been pressed had NY Penal Law called for minimum of two years for taking her wallet; they would have been safely locked up until her graduation. |
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> | I can understand why we give law enforcement officials, and prosecutors especially, so much discretion and power. Few are those who have not suffered an unpunished crime or fear of law enforcement's failure to capture neighborhood criminals. My family's car windows have been smashed while parked during daylight hours in downtown Santa Monica. I know of students who have been mugged and worse by standard-description teenagers who have never been charged for those particular crimes, and I know of a group of youths who were caught but released because the victim just did not want to deal with the process and the fear of retaliation. Minor crimes, sure. Even when objectively we are relatively safe it is easy to feel afraid; all it takes is one news account of a serial rapist or a brutal beating for voters in search of security to vote for the tough on crime politician who will enact some Three Strikes Law equivalent. |
| | You are writing about
life in a city that is as safe as it has been in two generations, and |
| | fear. |
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< | The solution to public fear is to broaden the reach of criminal statutes.
Citizens can be protected by a strong, visible and alert police force; by a healthy social, educational and economic structure; and by locking away all the dangerous elements. |
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> | The solution to fear.
Citizens can be protected by a strong, visible and alert police force; by a healthy social, educational and economic structure; or by locking away all the dangerous elements. |
| | Surely you've some
awareness of the sound of this talk of locking away dangerous |
| | perhaps you can tell me just what evidence you have to support the
very dubious statement above? |
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< | The last is perhaps the easiest. Sentences can be increased for crimes that are easily proved and likely linked to other crimes (such as drug laws), and legislatures can broaden the reach of criminal statutes. Those actions have been taken. |
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> | The last is the easiest, so that is what has been done. Sentences increased for crimes that are easily proved and likely linked to other crimes (such as drug laws), and legislatures have broadened the reach of criminal statutes. |
| | With what positive
result?
Law students becoming law enforcers, integrity and sense of justice
Many will face the same pressures of competition and prestige |
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< | Success as defined in the law school can be dangerous when carried past graduation. Law school encourages pursuit of status symbols. What drives law students towards the pursuit of the best law firms, what drives them towards the pursuit of the most prestigious U.S. and district attorney offices to practice in, will push lawyers towards the pursuit of whatever status symbols prosecutors have among themselves: highest conviction rates, the highest sentences; the most publicized and challenging cases. I was shocked to see how brief are the descriptions of crimes in the New York Penal Law. The vagueness of statutes allows for creative, expansive application. An ambitious lawyer can do so much injustice, by choosing to charge a felony instead of a misdemeanor, by plea bargaining a weak case, as the result of overzealous exercise of decent, law-abiding citizens’ right to security. |
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> | Success as defined in the law school can be dangerous when carried past graduation. Law school encourages pursuit of status symbols. What drives law students towards the pursuit of the best law firms, what drives them towards the pursuit of the most prestigious U.S. and district attorney offices to practice in, will push lawyers towards the pursuit of whatever status symbols prosecutors have among themselves: highest conviction rates, the highest sentences; the most publicized and challenging cases. I was shocked to see how brief are the descriptions of crimes in the New York Penal Law. The vagueness of statutes allows for creative, expansive application. An ambitious lawyer can do so much injustice, by choosing to charge a felony instead of a misdemeanor, by plea bargaining a weak case, as the result of overzealous exercise of decent, law-abiding citizens' right to security. |
| | How do we discuss
prosecutorial discretion until we clean up the harm done by implying
that every acquittal is an injustice?
"Those young ADAs, they think they are God" |
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< | An attorney at the Legal Aid Society made that accusation. |
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> | An attorney at the Legal Aid Society made that accusation when he introduced interns to the organization's work. I think his point was that even for their clients who both did and intended the acts for which they stood trial, those seemingly indefensible clients, the Society's lawyer's still had to protect even those clients from overzealous prosecution. |
| | It's not an accusation.
It's an observation. I know exactly what he
means. |
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< | Law school is a disempowering experience, or maybe just first year, with severely limited freedom of choice and anonymized individuals, set towards one competitive goal like racing dogs. At the same time, because of the impossibility of specialization at this level of learning, I find myself easily replaceable. Even work for voluntary pro bono projects showcase how useless a first year student is; the work usually involves helping someone fill out government forms and presenting an obvious case against an absent adversary. It must be exhilarating to be a first-year attorney with the power to charge and prosecute and to win. Every client deserves zealous advocacy. For most lawyers the client is an easily identifiable individual or entity whose goals are so clearly defined that the lawyer’s work is bound by their boundaries. Not so much the lawyer whose client is the state. They are supervised. They are in many ways constrained. They also have freedoms and powers over the indigent, over people who for various reasons walked into the criminal justice web, that only they could control. |
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> | The problem more likely lies in that most young ADAs know they are not God, not in their personal and professional lives, yet they still have tremendous power over a certain class of potential defendants, easily abused. Law school is a disempowering experience, or maybe just first year, with severely limited freedom of choice and anonymized individuals, set towards one competitive goal like racing dogs. At the same time, because of the impossibility of specialization at this level of learning, I find myself easily replaceable. Even work for voluntary pro bono projects showcase how useless a first year student is; the work usually involves helping someone fill out government forms and presenting an obvious case against an absent adversary. It must be exhilarating to be a first-year attorney with the power to charge and prosecute and to win. Simply win.
What to do?
Prosecutors are already supervised; they are in many ways constrained. What to do about this freedom they in the exercise of their power over the indigent, over people who for various reasons walked into the criminal justice web? Unlike superheroes, the Harvey Dents of real life are prone to mistake, prone to malice, prone to ignorantly causing injustice while in the pursuit of apparent professional success. It is a power only they can control and refrain from abusing. |
| | This "power to charge
and prosecute and to win" is the power to damage or destroy many |