The Definition of Insanity

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30 Responses

  1. InMD says:

    Good piece. It reminded me of my brief time doing criminal defense. The circuit court in the county where I primarily practiced had massive dockets designated for cases like this; misdemeanor drug charges, DUIs, traffic offenses, and similar low level quality of life stuff. Before any of the defendants were allowed in they’d bring in all the defense attorneys and sit us in the jury box where we were provided with what they called a menu. The ‘menu’ was a list of offenses with a combination of jail time and fines that you could select if you plead guilty. The higher the fine you’d agree to the less jail time.

    You’d then go discuss it with your client in the hallway and come back to the jury box. After that the cases would be called rapid fire states attorney by states attorney. They’d go through a hundred or more cases in a morning like that. Pretty much every one takes the guilty plea because from a practical perspective it’s the least disruptive to their lives and most the people involved aren’t well equipped to do anything else. Like the defendant in the OP you had people who were in there all the time.Report

    • PD Shaw in reply to InMD says:

      Where do all of these defense attorneys handling misdemeanor offenses come from? I’ve mostly watched from the back rows, and if anything there are fewer attorneys in the low level stuff than 20-some years ago from my observations.

      I don’t think most people take the guilty plea because it’s the easiest path; they take the guilty plea because they’re guilty. These type of offenses are generally easily proven. The prosecutor has probably created a “menu” which is within a probable range of outcomes. The defense attorney’s job is to advise them of their options. I make this claim because otherwise people start wanting more process, when really the issue is what the laws require (every driver to pay licensing and registration).

      Around here, minor drug offenses are used to push offenders into drug rehab programs; they will have their sentencing delayed and will report for status to make sure they are attending and showing progress. I wonder if non-payment of license & registration should similarly be directed towards social programs that would help improve life choices.Report

      • InMD in reply to PD Shaw says:

        I assume most of the lawyers got out of law school sometime during the great recession like I did and were doing what they could to get experience and maybe a little bit of money in various eat what you kill arrangements with small firms. Also to be clear, not every defendant there had counsel but it’s a very large jurisdiction with big dockets. There’s also a pretty healthy DUI bar in the area, no pun intended, and a lot of them were there for the party.

        Maryland does have drug diversion and thats where the vast majority of first time offenders go. Small amounts of marijuana have been decriminalized since I was practicing in this area so maybe that has changed the volume somewhat. IIRC most of the folks in the dockets I described above for misdemeanor drug offenses were in there for at least a second or third offense.

        Also I agree that the vast majority of defendants for charges of this nature are guilty and at the end of the day the deals on offer were the best outcomes reasonably possible. My issue isn’t that we need to turn every little thing into a jury trial, more that I don’t think the criminal justice system is the right place for a lot of these issues. Jsing it for them can cause more problems than it solves. I’d rather find alternatives to help them get their lives together and maybe try for some investments in the communities they come from to hopefully keep people out of these cycles to begin with. Maybe that would be futile too but I think it’s worth trying.Report

        • PD Shaw in reply to InMD says:

          Mainly I was thinking of traffic court. Maybe 20 years ago there were a lot of attorneys that handled these cases in any given cattle call and then about 10 years ago when I went on behalf of myself, there was only one. I don’t know why; it might be that people are poorer relative to higher fees. Also, the more pressure on the court system, the more standardization I assume. Were these “menus” specific to each defendant, or were they basically what was going to be offered to anyone based upon given factors?Report

          • InMD in reply to PD Shaw says:

            The menus were not defendant specific and were offered to everyone based on the given factors. It would be a spreadsheet with a row for a particular offense and how many past convictions (so for example DWI, second offense) then the columns would have a combination of fine/jail time. I think the most jail time was 30 days, which in practice for most people would probably have ended up being shorter. I don’t remember what the highest fine was.

            This is a county with a lot of issues so is quite busy. I’ve been to others bordering it that weren’t like that even on busy days.Report

    • Richard Hershberger in reply to InMD says:

      Circuit Court? In Maryland? Surely District Court for this kind of stuff.Report

  2. Oscar Gordon says:

    Excellent post!

    I can understand why the system is the way it is, but I don’t understand why we don’t change it, other than it only impacts the lowest of us, and the rest can’t be bothered to care.Report

    • Kolohe in reply to Oscar Gordon says:

      Yeah, there’s your answer. There’s also a disconnect between people that advocate for more enforcement of traffic laws (and the addition of other small health and safety laws*) and those that are sympathetic to this stopping this ‘insanity’ – even though they’re often the same people (politically).

      *yeah, I’m talking about the smoking in cars with kids law that we discussed on twitter the other dayReport

  3. Tracy Downey says:

    “When we do otherwise, we annihilate the defendant. We take everything from him, except his offenses, turning a human being into the violation of a code section, with a term of punishment prescribed. This self-perpetuates. Today’s first offense becomes tomorrow’s second, and then next month’s third. People get trapped in the mechanical logic of criminal statutes, and too often no one stops to consider whether they could, or even should, get out. Thousands upon thousands of people suffer though this punitive thoughtlessness, every day. It leaves horrible scars.“

    I’m studying CRJ and first off, I asked about the problematics with not just police discretion but judicial discretion. This is a prime example of it. What I’d like to see in criminal justice reform is a true commitment to get to the root of the problem on police procedural-community policing rather than fighting it out in court. Filling up the dockets to overwhelm the courtrooms only desensitizes Justice. I hope I’m articulating this correctly at 7 am pst. Excellent breakdown, I enjoyed reading it.Report

  4. atomickristin says:

    Great piece.

    My brother got into legal trouble for drunk driving when he was 18/19 years old. They just kept piling on more and more fines, fees, mandatory classes, etc till it was so onerous that it could have easily ruined his life forever. He had supportive parents (with enough money to help to some extent) and bosses and was able to work through it but it took a decade before all of it was paid off and the classes were completed.

    It’s a system that pretty much dooms people forever once they fall into it.Report

  5. Saul Degraw says:

    The thing that strikes me here is that this guy sounds incorrigible. Maybe it is wrong but I hear is statement as being “Nothing is going to get me to change my ways, judge.” You are right that the system doesn’t know how to handle people like this in a constitutional and humane manner and it just makes everyone feel ground down and burnt-out. But I’m not feeling anything for the Defendant in this case as a lovable rogue either.Report

    • Stillwater in reply to Saul Degraw says:

      But I’m not feeling anything for the Defendant in this case as a lovable rogue either.

      Your mistake is viewing the situation through an emotional lens, relying on a feeling about the defendant to give the anecdote meaning.Report

    • PD Shaw in reply to Saul Degraw says:

      I interpret the judge’s pause as him considering a heavier sentence because the offender had given every reason to believe past sentencing had been an insufficient deterrent.Report

    • Em Carpenter in reply to Saul Degraw says:

      It sounds like it’s not so much that he’s incorrigible as it is that he has no other choice: drive illegally or not work. If you have a family to feed there’s really only one option there.Report

    • Don Zeko in reply to Saul Degraw says:

      I have clients like that guy. I have quite a few, actually, and I wouldn’t describe any of them as incorrigible. They are trapped in a situation where it is practically impossible for them to comply with the law because they have neither the money needed to drive legally nor a practical alternative to driving in a society built around cars.

      When you plead guilty to driving without a license once, your license is suspended for another year and you are fined, usually between $200 and $400. If you don’t pay the fine, you can’t get your license back. Many of my clients have been trapped in that situation for years and now need thousands of dollars to pay the fines and get their license back.Report

      • Don Zeko in reply to Don Zeko says:

        While I’m at it, I’ll add that in NC the DMV will give you an indefinite suspension if you have a certain number of convictions for driving with a revoked license. if this happens, then not only do you have to pay off whatever unpaid tickets you have, you also have to request a hearing from the DMV to restore your license. The hearing costs $200 regardless of the outcome. The whole apparatus criminalizes poverty. More often than not, when I run the driving record for somebody who hasn’t had a driver’s license in a decade I find that the reason they lost their license in the first place was that they couldn’t pay a $300 ticket. It’s insanity.Report

    • Jaybird in reply to Saul Degraw says:

      Yeah, in pro wrestling, there’s a reason that the only people allowed to tell the truth are the bad guys.Report

    • The question in reply to Saul Degraw says:

      Baring being independently wealthy you got to work to eat man and that means you got to drive in most places we don’t all have access to public transportation and even when we do it often takes like three four times as long to get anywhere so take that I don’t know what else to call it but privileged attitude and redirect it towards something necessary.

      Christ man maybe punch down a little less.

      I mean basically in the situation described above the states making a living off the fact that this guy has to make a living. It’s codswallop.Report

  6. Patrick says:

    “Rather, there was no particular reason. That’s just the docket.”

    This is my only problem with this piece.

    There is a particular reason. All of the defaults are aligned the way they are. There is a nascent incentive to continue on under the existing defaults.Report

  7. Em Carpenter says:

    Love this. I am very familiar with the assembly line justice model. As a baby lawyer assistant prosecutor I ran misdemeanor dockets in my state’s busiest jurisdiction. We usually had three courtrooms running dockets of 50-100 cases each, one prosecutor in each courtroom.
    We usually had barebones files with nothing but a complaint/report. If we were lucky we had a witness list. There was no “prep” for court. A runner would bring the stack of files over in the morning and when I picked it up when the case was called was usually the first time I saw it.
    A typical docket went like this:
    The cases were staggered in 15 minute chunks (multiple cases scheduled at the same time). At the appointed time, the magistrate (and sometimes I) would go out to the lobby and call the defendant’s names to see who was there. I’d then ask for a capias for any defendant who didn’t show up. The defense attorneys would typically ask for a dismissal for any case for which the necessary witness had not appeared. Most of the time the magistrate would allow each side one continuance rather than grant a capias/dismissal.
    Then I’d go pick a file for a case could go forward that day and try to figure out who the defense attorney was. We had a PDs office with a magistrate court division, so they’d typically be there floating (read:running like chickens with no heads) between clients and court rooms. Private counsel (as opposed to court appointed) was rare; maybe one per time block.
    If there was a victim/witness present, I’d go check to see if they’d shown up, assuming my file reflected they had been subpoenaed. I would talk to him or her and ask the victims how they hoped the case would be resolved. I’d talk to the arresting officer if present. I’d formulate a plea offer and track down the attorney to make it, then move to the next case while I awaited their answer.
    If they came back with an acceptance, the defense attorney usually did the paperwork (a fill-in-the-blank form) while I worked up other cases until they were ready to take it to the magistrate, whom I would usually have to go track down in their office having coffee and chatting with their assistants.
    If they declined the offer, we would ask the court to reset for trial, usually bench.
    Almost nobody was ever sentenced to jail. It was a fine and/or unsupervised probation most of the time, home confinement if incarceration was mandatory. A plea offer which included jail would inevitably mean a trial, and there just wasn’t time, so jail was only demanded for the most serious cases (2nd offense DUIs, serious domestic batteries and the like).
    One of the only types of misdemeanor cases in my state that had mandatory jail time is driving on a license revoked for DUI. The punishment for that was far more severe than the DUI itself, and there is no such thing as a provisional or restricted license here. In a state as rural as West Virginia, public transportation options were limited. I’d say that 90% of cases that resulted in jail time were driving revoked for DUI (suspended for unpaid tickets was not jailable until 2nd offense and it was not mandatory).
    DUIs are huge money makers. It can cost upwards of $3000 minimum, factoring in fines, court costs, reinstatement fees, assessments, and mandatory classes. And every time you are caught driving on a revoked license, another year is added to the revocation and more fines fees and costs accrue. It is an endless cycle for an indigent person, who cannot even drive themselves to work to make the money to pay the fines to get out of the hole.

    All this is to say that I agree that the current system is onerous and ineffective. A driving offense, at least here, is treated much more seriously than smacking your wife around would be. There is zero room, time, or opportunity to treat each case individually.Report

    • Don Zeko in reply to Em Carpenter says:

      It’s really interesting to hear how different jurisdictions handle these sorts of cases. Some things are very similar, others are not. In my county, for example, people routinely get active time for shoplifting if they have a bad record.Report

  8. pillsy says:

    There are good reasons to treat driving, from a legal perspective, as a right. It makes all the sense in a world to want people who have a habit of plopping themselves behind the wheel while hammered to not drive.

    The problem, it seems, is that from a societal and economic perspective, being unable to drive is a tremendous obstacle for a sizable majority of Americans.

    It seems there are some ways we could solve this problem, but most of them aren’t cheap and in particular mean that we would have to spend the money on behalf of making the lives of lawbreakers “easier” [1], which is a real political uphill battle.

    Or we’d have to undo decades of public policy and subsidies that built our car dependency, which would be even more expensive, and less popular, no matter how many other reasons we might have to do it.

    [1] Easier relative to whatever horrible ordeal we put them through now. Whether it’s easier than what they’d experience if they followed the law doesn’t measure into it probably due to some nigh-universal defect in the dodgy lumps of meat jelly inside our skulls.Report

    • George Turner in reply to pillsy says:

      Well the obvious solution in recognizing a “right to drive”, or at least a right to be driven around, is to have the judges and attorneys in these cases drive the defendants back and forth to work and to the store until they get back on their feet.

      It gets poor people off the streets and into productive jobs, and gets lawyers out of the court room. It’s a win-win.

      But yes, for some reason we made traffic court into our equivalent of debtor’s prison, and probably the same reasoning and rationals were at the heart of both systems. The only difference is we dispensed with the powdered wigs. The defendants, the circumstances, and the pounding gavel are the same.

      My house-mate attorney argues that the state should recognize a right to drive, and that our driving laws are antiquated, coming from early notions that cars were dangerous, rare, and expensive technological marvels that required state supervision, as if they all had on-board fission reactors.

      In truth, the car simply replaced the horse, but by the time it did the over-reaching state regulatory bodies were already self-sustaining. So show me anywhere in early American law where states required horse registration and rider operating licenses. Show me any Founding Father who thought the state had the right to make a citizen walk everywhere on foot if he was caught riding his horse too fast or hadn’t put enough coins in the hitching post in front of the dry goods store.

      And it does impact the poor in a fundamental way. The times I’ve had to go down and pay traffic fines, standing in the long line, I’ve been amused to find that so many people in line were already on a first-name basis from being in that same line all the time. Instead of Mayberry having the one Otis who lets himself into a cell at night, we have a whole class of townspeople who are under water trying to pay Barney Fife late fees on all the fines they can’t pay. That is no way to run a justice system or a community.Report

      • DavidTC in reply to George Turner says:

        But yes, for some reason we made traffic court into our equivalent of debtor’s prison, and probably the same reasoning and rationals were at the heart of both systems.

        That’s not the only part of the court system we’ve done that with.

        At some point we will look back at the concept of ‘fining someone who is currently unable to pay his existing court fees, and then fining him for being unable to pay those new fines, etc’ and ask ourselves what the _hell_ we were doing. How we thought this system made any sense at all.

        And there really does seem to be a basic constitutional issue here. And I don’t just mean the ‘rich people are not actually injured in any manner by small fines as punishment, and those same small fines can destroy poor people’s lives’ fundamental inequality. Where the wealthy can basically just think of ‘sometimes getting caught’ as a very small tax. That is bad enough so, and by itself that seems a real constitutional issue of equal punishment under the law, but not what I’m saying.

        I’m saying the courts often seem happy to impose fines that it is literally impossible for people to pay off. Not just ’cause poor people a lot of harm’, but ‘cannot actually ever be paid based on the current earnings and expenses of this person’.

        Does the man in this example have any other employment choices to him? If he cannot work without transportation, and hiring transportation is more than any job would pay, he is literally incapable of following the law and paying his fines. People must be able to comply with government demands, or there’s a real constitutional issues for punishing them for failure to comply. It is fundamentally unconstitutional to pass laws that people cannot help but violate.

        If we’re going to demand that he earn that money and pays the government it, we must make sure that society has provided some sort of job he can get to do that, or, I dunno, have some sort of ‘transport him to some government-provided jobs program’ setup or something. (Although it’s probably easier to just, you know, not keep fining him stupid amounts.)Report

  9. This is some real “what we have here is a failure to communicate” type stuff, although it also reminds me of an interaction I once had with a teenager I worked with. He asked me what the consequences would be if he hit another teenager in the house. I explained to him the punishments that would result, including being reported to his social worker as well as in-house consequences, and he took a minute before saying, “Yeah, okay.” When the opportunity next presented itself, he hit the other teenager, then turned himself into us.

    There isn’t much to be done in situations like that beyond radically rethinking things. But justice systems are in very poor positions to radically rethink anything. Hence the reapplication of the same consequences, with the assumption that surely it will matter this time.Report

  10. Mike Dwyer says:

    Randolph, really, really enjoyed this article and I agreed with all of it. Thanks for writing it.Report

  1. March 5, 2019

    […] Follow Randolph Brickey on Twitter and read his articles, They Stole My Batman and The Definition of Insanity. […]Report

  2. June 9, 2019

    […] Twitter and reading his compelling writing in places like Ordinary Times, where he once wrote about The Definition of Insanity. You can also hear him on the podcast, This Week in Atrocity. For example, you can find the episode […]Report