Sentence First, Verdict Afterwards! Judges, Bail and Coercive Plea Bargains

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Michael Brick's ambitious piece in today's New York Times about the wide ranging narcotics prosecutions in the housing projects of Brooklyn omitted some important details which suggest that the "historic conspiracy" referred to by the Brooklyn District Attorney's office was not the series of drug transactions being prosecuted under the false flag of an overused conspiracy law, but rather one between Mr. Hynes's office, and a compromised judiciary conscripted in the service of unsustainable prosecutions by fawning press coverage and a lack of simple courage.

While Mr. Brick does imply (by quoting defense lawyers) that the use of first degree conspiracy charges had the effect of "exacting jail terms they might not otherwise have won," he does a shoddy job of explaining just how the use of bail coerced plea bargains, and entirely omits the fact that bail is a matter of judicial discretion, thus failing to pose the question of why judges continued to set and maintain bail as case after case collapsed.

The omissions reflect Mr. Brick's thesis that the cases "stumbled at the courthouse steps." That thesis posits that the system actually works with judges fulfilling their proscribed role as checks on prosecutorial power. In fact, judges were complicit in the continuing prosecution of the cases at each step from arraignment onwards.

Mr. Brick correctly noted that those charged with Conspiracy in the First Degree (Penal Law Section 105.17) had bail set at astronomical numbers. Certainly (though he didn't mention it) this is in part because 105.17 is a class A-1 felony, punishable by life in prison and subject to the same penalties as a murder. Still there is no statute that requires judges to set high bail, or even, bail at all. In fact, releasing defendants charged even with serious crimes is the prerogative of any presiding arraignment judge, and one of the main things those judges are required by law to consider is "the weight of the evidence against (the defendant) in the pending criminal action and any other factor indicating probability or improbability of conviction." When juries soundly reject conspiracy charges in case after case, and when the district attorney's office resolutely refuses to even explain the basis for such serious charges citing secrecy, it becomes incumbent upon judges to refuse to set bail and to begin to release defendants charged in the same manner.

What happened in Brooklyn, though is precisely the opposite. For years and years, despite the District Attorney's office's utter failure to secure even a single conviction on Conspiracy 1 charges, judges continued to set and maintain high bail knowing full well that it would take a year or more for cases to come to trial, and that when they finally did, almost no defendant in their right minds would refuse a "time-served" or get out of jail today plea offer. In short, judges were the silent partners in an Alice-in-Wonderland like sentence first, verdict afterwards regime. Had they done their jobs, and refused to set bail based on unsustainable charges, prosecutors would quickly have tired of the legal charade they have used for years to railroad potentially innocent people into pleading guilty to unprovable cases founded on questionable and sometimes virtually nonexistent evidence.

Letting the judiciary off the hook for their complicity does a disservice to readers, and perpetuates the myth of a well functioning system of criminal justice. In fact, as even the most cursory look reveals, co-opted judges, all to eager to appear tough on crime and unwilling to exhibit the courage necessary to take an unpopular stand, have long ago become prosecutorial partners in the tragic dismantlement of the constitutional safeguards we all rely on to protect us from an increasingly overreaching government.

Comments

[oldpotsmuggler]

John Q. Public cannot be left off of the hook for this. Those poor bastards were railroaded like this in our name, and we, so far, have done nothing to stop the whole drug war train. In fact, there's a certain mind set in our society even today that just thinks that the world runs more properly when we have a certain number of dark skinned people locked up behind bars, and that that hardly constitutes a situation that we really want to look too deeply into.

God is in his heaven, our prisons are full, and we can sleep a bit more soundly at night. How all of that gets done, then, is certainly allowed to remain one of the mysteries of our small little individual universes, and there are all too few of us who appreciate being asked to think very closely about the matter.

[BusGreg]

America makes up between 4% of the world's population yet we proudly and gleefully incarcerate more than 25% of the world's prison population. Overall population: China, 1,321,851,888 and the US, 301,139,947 as reported for 2007. The incarceration rate as reported by the UN in 2001 was for China, 1,428,126 and the US 1,962,220. Even China, a nation known for human rights abuses and with over 4 times the population we have, has fewer incarcerated than we do! A report by the PEW Center recently came up with these numbers; 1 out of every 100 adults and 1 in 15 black males over the age of 18 are currently locked up in the United States and we can pride ourselves in this record! We are Number One in the systematic incarceration in the world! American taxpayers are forced to pay close to 50 billion per year to support the warehousing of nonviolent drug offenders alone, when violent offenders often get released early to make room in an overcrowded prison system. 48% of our prison population is for non violent drug posession charges!
The war on drugs is a failure, just as the war in Iraq. Both are based on lies perpetrated by our government. 2/3 of the country want us out of Iraq and said so at the ballot box in 06. 2/3 of the country support decriminalization of cannabis yet no-one speaks up at the ballot box, so the failing war on drugs continues after 94 years.

[wilhelmR]

We arrest anybody we don't like, then you're guilty first, prove your innocent second: That is Florida. "The Trial" by Kafka. Worst than Communist States.