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Will

Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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47 Responses

  1. Avatar Tony Comstock
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    Don’t worry. Algorithms and crowd-sourcing will fix this.Report

  2. Avatar E.D. Kain
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    Very well said, Will.Report

  3. Avatar Bob
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    Obviously “human discretion” has not been removed from “the framework of our lives” regarding *this* case. The article you linked states, “…although Judge Patricia Cosgrove suspended all but ten days of the [5 year] sentence.” Sounds like the judge exercised a good deal of discretion here.Report

    • Avatar Will in reply to Bob
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      You’re right – the judge did exercise discretion. But that was only after the prosecutor refused to offer a plea bargain.Report

      • Avatar RTod in reply to Will
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        Except – again – she didn’t get prosecuted for what you claim she did. (and to be fair to you, what the Agitator said she did)Report

      • Avatar Bob in reply to Will
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        Will, I took your point to be lack of discretion in bureaucracy generally, not just the prosecutors office. If the prosecutor acted badly the judicial end of the bureaucracy rectified the problem. In short, “human discretion.” The system seems to have reached a reasonable outcome.Report

  4. Avatar Aaron
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    While I agree with your larger point, in this case the prosecutor does have the discretion to offer a plea bargain, but has chosen not to do so. Plea bargaining is the norm in our criminal justice system. A prosecutor’s refusal to engage in plea bargaining is arguably a greater exercise of discretion than is the offer of a charge or sentence bargain.

    The judge appears to be maximizing her exercise of discretion, first by suspending virtually all prison time associated with the conviction and second by holding out the possibility of expungement after a mere six months of probation.

    My inference is that race is a factor here, and that the prosecutor is justifying the refusal to plea bargain on some form of theory of deterrence. I would search out the details, but I don’t want to reinforce my cynical tendencies by finding out that I’m correct.Report

    • Avatar Will in reply to Aaron
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      Following the letter of the law instead agreeing to reduce the sentence does not strike me as an example of prosecutorial discretion, Aaron. It’s a judgment call, sure, but it’s a judgment call that requires a lot less thought on the part of the prosecutor than a good-faith effort to determine a truly just sentence.Report

      • Avatar Pierre Corneille in reply to Will
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        I wouldn’t put it precisely in terms of refusing to plea bargain “requires a lot less thought” than a plea bargain. It does, however, require a lot less thought to justify the prosecution.

        In a sense, though, the woman in this case–if the information on the blog post you linked to is accurate–might get an even better deal than if she had pled to a lesser crime and lesser punishment: now, the judge keeps open the possibility of expunging the felony from her records while in a plea situation, I imagine expungement would be out of the picture. (I’m not a lawyer, so I really don’t know the in’s and out’s.)

        Maybe–and I’m raising this merely as a possibility because I have no evidence–this was a case of a prosecutor trying to save face or gain constituents’ favor while passing the buck off to the less political actor (the judge) to do the right thing. (I realize that some judges are elected, but even if judges in Ohio are elected, their role is usually not as politicized as those of prosecutors.)Report

      • Avatar Aaron in reply to Will
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        Discretion is “the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines”. A prosecutor’s discretion in making charging decisions and offering plea bargains cuts both ways – a prosecutor’s decision about when to proceed with the most serious charges or when to refuse to plea bargain is an exercise of discretion. “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978).

        The prosecutor had a lot of options here, from the common approach of telling the school district, “I have better things to worry about, so I’m going to treat this as a civil matter – bill her and, if that doesn’t work, you can sue her.” The prosecutor could have charged the offense as a misdemeanor. The prosecutor could have listened to the judge, or simply followed what is likely standard procedures for his office, by offering a reduced charge in exchange for a guilty plea. The prosecutor’s decision to instead single this woman out, charge the most serious offenses he could identify and take the case to trial? That was an exercise of discretion.Report

  5. Avatar Francis
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    Abuse of police and prosecutorial discretion is a much-underreported outrage (sayeth the husband of a LA County public defender).Report

  6. Avatar tom van dyke
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    Part of what I was trying to get at elsewhere is that removing human discretion from the framework of our lives – be it at the hands of a detached bureaucrat or a bored customer service representative – makes a mockery of any system of rules.

    Perhaps we could say the prosecutor did her job, the judge did hers, and the “system” worked.

    “System,” of course, referring to the blend of formal and informal, “a nation of laws, not men” vs. human wisdom and compassion, the difference between—but the overlapping spheres of—government and society.

    Just a thought. The mother did an illegal thing, albeit the right thing.Report

  7. Avatar RTod
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    I don’t want to take anything away from Will’s point, which I agree with. But…

    I could be wrong, but a mom getting five years for using grandpa’s address for school enrollment sounds like the kind of story that papers, then blogs, then talk radio and finally cable news cycle through for a few days with OUTRAGE!!!, and then a few weeks later it’s quietly reported (and ignored that many, many facts are missing/made-up; and the reality is far less crazy.

    Of course, if I’m wrong, the whole justice department of Summit County should be horsewhipped.Report

  8. Avatar Jaybird
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    For a good time, read the comments on the website.Report

  9. Avatar RTod
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    And I hate to be right when I’m being cynical (see my comment above), but going to the original story from the same newspaper that “broke” the follow up story might have been a good idea for the writer(s) over at the Agitator.

    The woman didn’t get the hammer thrown because of using a bad address to get a better education. She used a bad address and false income statement to defraud the government and get unnecessary government assistance.

    http://www.ohio.com/news/114409139.htmlReport

    • Avatar Will in reply to RTod
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      I think you’re confusing the mother and her father. According to the story you link to, the mother was only convicted of falsifying records.

      And even if you’re right, does that make a five year sentence any more reasonable? Come on.Report

      • Avatar RTod in reply to Will
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        Oops. You are correct WIll, I did not read it carefully enough. Apologies.Report

      • Avatar Aaron in reply to Will
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        There’s something else to consider as well – this type of fraud happens frequently, throughout the country, has been happening for many years, and is anything but a secret phenomenon. (See, e.g., the 1984 film, “The Buddy System” – http://www.imdb.com/title/tt0087006/ .)

        I’m not saying that it hasn’t happened, but I’ve never before heard of a parent being charged with a felony over this type of school enrollment issue. The most common result seems to be for the school to notify the parent that they have X days to submit proof of actual residency, withdraw the child from the school, or start paying tuition.Report

  10. Avatar BSK
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    Will-

    I appreciate your recognition that your privilege may be impacting your perspective here. I, too, am a privileged white guy, and I am working to understand just how that play out in my life, both in how I am treated/perceived and how I experience and understand the world.

    My gut feeling is that discretion is just another form of power. And, like any other power, it can be used in good and just ways or in horrible ways. More often than not, from what I have come to understand, it is used in horrible ways. So many conversations (not necessarily here but in society-at-large) that surround supposed abuses of the justice system focus on aspects of the situation completely unrelated to justice. We hear about GPAs or team/club affiliations or family structures or looks or church attendance or some other nonsense. This is all used to argue on behalf of “discretion”. The argument is often, “How can you throw this mother of three/valedictorian/church goer/pretty/young/hard working person in jail for THAT?” The implication is that if the accused was childless or dumb or an athiest or ugly or old or lazy that somehow the situation would be more justified. Often, the modifiers used are coded language for reinforcing class, gender, racial, or other privileges and, subsequently, furthering discrimination and denying equity.

    Now, is a system where all people are equally fucked (er, I mean, treated) better than a system where only some people are fucked? From a utilitarian perspective, sure, I guess. But I don’t subscribe to that line of thinking. And when the unbalanced system is then used to justify a further fucking of the already-fucked, things start to go haywire soon. (E.g., people who argue that instead of searching everyone at airports with backscatter/fondling, we should instead just full-on cavity search “those” people).

    So, yea, I’m bothered my discretion, only because too often I think it is used to do more harm than good. In an ideal world, we could trust it. But it just too often seems abused.Report

    • Avatar BSK in reply to BSK
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      To elaborate, this story could be spun a variety of ways.

      The accused could be painted as a hard-working woman who is just trying to do right by her children and the government as the big, bad wolf who is denying her kids a fair shot.
      -OR-
      The accused is a lying, thieving dreg on society who feels entitled to something not hers and who is robbing the public blind.
      -OR-
      A billion other ways, I’m sure. But let’s not pretend such spinning is unique to the press and has no bearing on the case itself. We see prosecutors and defense attorneys do this all the time, in the court of law and the court of public opinion. The fact is, neither “spinning” has any bearing on the facts of the case. Yet results often indicate otherwise. And I’m not comfortable letting story telling be a major factor in justice. If you wouldn’t want the first woman thrown in jail, then let’s not throw any woman (or man) who commits the exact same acts into jail.Report

      • Avatar Koz in reply to BSK
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        I don’t know what all this is supposed to do with the price of tea in China. Contrary to the original post and Bob’s fears, prosecutors in fact have a great deal of discretion. Whatever we think the optimal outcome should be in this case, the cause of this particular result isn’t the lack of discretion as much as the refusal to use it.Report

    • Avatar Will in reply to BSK
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      I wish I had time to respond to this comment at greater length, but I wanted to chime in and say a) I agree that allowing people to exercise discretion is a form of power and b) I tried to preempt some of this with my point about society having largely internalized norms of fairness and equal treatment over the past several years (hence my belief that we can “risk” a return to localism). But this is thoughtful stuff, and I wanted to acknowledge your input.Report

      • Avatar BSK in reply to Will
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        Acknowledgement acknowledged! I guess my point is that, for all the hemming and hawing over fairness and equal treatment, we still see some intensely unequal treatment. Be it cops, rich folk, whomever… the justice system is pretty fucked. Maybe localism would be a better solution. Ideally, the people wielding discretionary power would use it more thoughtfully, and I can see arguments wherein localism might make the people with the power more accountable.

        My response was probably largely founded upon a visceral reaction to arguments in favor of discretion, which are so often thinly veiled arguments in favor of “treat the people I like better and the people I don’t like worse.” I don’t think you are making that argument at all, but that is my knee jerk response to calls for increased discretion, and I apologize if I painted with overly broad strokes.Report

  11. Avatar trizzlor
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    The strength of your underlying point was sacrificed to the willfully inaccurate summary of the case. Why is “defrauded” in scare-quotes? She didn’t “defy a school district”, rather she falsely claimed the residence of her kids. Why obscure the real story so blatantly?

    This is like saying Raskolnikov had just found a clever way to pay off his debts.Report

    • Avatar Koz in reply to trizzlor
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      Because the nature of the “fraud” is highly unusual to say the least.Report

      • Avatar Will in reply to Koz
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        “Defraud” was a poor choice of words. One of the perils of speed-blogging.Report

      • Avatar trizzlor in reply to Koz
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        I guess I’m coming at this from a different perspective, but where I went to high-school (Connecticut) this was commonly talked about. In fact, I personally knew a family that had their kids “registered” at a different public school in this very manner. My parents considered playing this game but for the lack of actually knowing anyone in the district and the logistics of getting me to school on time every day. They ended up moving, which cost a whole lot more in the long run than the fines would have.

        I guess this does raise a larger point about weather a prosecutor should be trying to reach a just sentence or the maximum achievable sentence under the law. And what exactly a “just” sentence is when the law allows for such punishment and also allows a judge to abrogate it.Report

        • Avatar Koz in reply to trizzlor
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          Yeah, that sort of thing is just so common I wonder what if anything differentiated this case.Report

          • Avatar Bob in reply to Koz
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            You are correct.

            I worked for many years in a “good” school district next door to a troubled urban district. The high school spent a good deal of time/money investigating transfers into the school. When this sort of problem was discovered the student was removed. I do not recall a case where the prosecutor was contacted.Report

      • Avatar Mike Schilling in reply to Koz
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        It’s extremely common in places where adjoining school districts are very different in quality. We lived briefly in a city with amazing schools right next to a distinct that had been poor even before the superintendent managed to bankrupt it. Proving that we were entitled to enroll our son required more pieces of documentation than getting a US passport.Report

  12. Avatar Koz
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    I really dislike prosecutors.Report

  13. Avatar tom van dyke
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    That a shithole school district can sit next to an excellent one is a failure of the nation, and of the several states via federalism. we [largely] leave education to the states.

    The only comfort is that this scandal happens in pretty much all 50 states. It’s a state scandal, but a national problem.

    And it’s not exactly the white bourgeois suburban Republicans who can be hanged with this. Although it’s probably a white thing.

    “I’m not a racist, I voted for Obama,” said one lady who opposed the colored kids coming into her NIMBY.

    http://gothamist.com/2011/01/20/park_sloper_im_not_racist_i_voted_f.php

    This situation makes me angry, and is killing our country. If we have to bus kids to the outskirts of town to get them away from needing metal detectors to learn to read and write, then that’s what we must do.

    Did I mention this makes me angry? 99% of the shit we blather about is less important than this.Report

    • Avatar Matty in reply to tom van dyke
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      Maybe I’m missing the nuances but it seemed to me that the lady was concerned about a particular schools reputation for vandalism and violence not about race. Yes she denied being racist but maybe sometimes people can say “I’m not racist but” and mean it.

      Also the kids don’t appear to be ‘coming in’ to her area so much as having been there for several years, which does support the idea that this is based on experience rather than prejudice.Report

      • Avatar BSK in reply to Matty
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        At the risk of derailing the conversation, the woman’s language is horribly offensive. And before we say her perspective is solely based upon experience, we’d have to examine how she comes to perceive that experience. There is ample evidence that suggests our perceptions of the very same actions taken by white folks and folks of color is often widely different. If the students engaging in behavior-offensive-to-an-animal were white, she may have been more likely to see them as kids being kids. But when those students are black or hispanic, suddenly to call them an animal would be offensive to animals.

        Having worked in multiple schools, I can say that there is often an unspoken code about who does and does not belong and what should be done with (or to) those who do not abide by this code.Report

  14. Avatar Pierre Corneille
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    Part of what I was trying to get at elsewhere is that removing human discretion from the framework of our lives – be it at the hands of a detached bureaucrat or a bored customer service representative – makes a mockery of any system of rules.

    I guess I see it more as a balancing act. Bureaucrats and passive aggressive CSR’s can act like petty tyrants if they have too much discretion or choose to exercise imperiously the discretion that is always inherent to some extent in enforcing rules. On the other hand, detached bureaucrats and bored CSR’s can, as you suggest in this post (if I understand your main point correctly), can mindlessly enforce stupid rules.

    But surely there is some middle ground, and some people count on the rules being enforced as written because that’s what’s been agreed to. If someone gets an overdraft fee and declines to ask it to be refunded because he/she has read the overdraft rules and admits to a mistake, it’s not fair, at least on some level, if another in a comparable situation gets the refund. Of course, you won’t receive anything if you don’t ask for it.

    Compared to the example you cite in this post, my example is, in the big scheme of things, rather petty. I certainly don’t condone charging anyone with a felony for simply lying about residence (assuming that’s all she did).Report

    • Avatar Will in reply to Pierre Corneille
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      Fair point. This is actually a follow-up to a series of posts I wrote earlier about the need to return to the sort of middle ground you’re talking about. The Cliff Notes version of my argument is that this incident and others like it represent a cultural shift towards dry, bureaucratic formalism that leaves precious little room for human discretion.Report

      • Avatar Pierre Corneille in reply to Will
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        Thanks for the thoughtful reply. I think I have read at least two of the posts in the series you mention. I should say, however, that I’m skeptical that we’re witnessing anything like a cultural shift, if only because it’s difficult to identify the contours and content of what counts as the “cultural” and because tendencies toward or away from “dry, bureaucratic formalism” probably come and go and have always, or for a long time, been with us. Perhaps because I study history, I’m prone to an almost reflexive (and perhaps not completely justified) dismissal of talk about “cultural shifts” as merely appeals to the good ole’ days.

        Now, if part of what you’re trying to do is to address the issue of “dry, bureaucratic formalism” in contradistinction to the other end of the spectrum (“emotive, non-rigid, discretionism”?), then I’m on board with pointing out its dangers and absurdities. If there are identifiable trends or policies that might heighten these dangers, then I’m also on board with pointing them out .

        However, and all the while acknowledging that it’s easier for me to criticize someone else’s statements than to offer something constructive, I remain dubious about whether these problems are new either as a cultural phenomenon or even as a policy regime that takes more toward “dry, bureaucratic formalism” than prior regimes.Report

      • Avatar BSK in reply to Will
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        I wouldn’t mind dry, bureaucratic formalism if it made sense. If we had fewer, simpler laws, I wouldn’t mind if they were applied uniformly and with little to no discretion. Then again, that probably wouldn’t be very bureaucratic, now would it? 🙂Report

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