Jail is not solely used to punish criminals and deter future crime (and a look at the over-crowding of our jails calls the latter into question). It also holds defendants who cannot make bail (or who were outright remanded) until such time as the case is resolved either through dismissal, plea bargain or trial. This pre-trial detention often results in absurd situations where, if a defendant insists on taking a case to trial, he will spend more time in jail awaiting trial than he likely would once he is found guilty at trial. This gives prosecutors tremendous leverage to force a defendant to plead guilty.
Take for example the defendants I mentioned a few months ago. These guys (and gals) are patsies whose real crime is being stupid. Many of them are charged with felonies, but, depending on their actual culpability, the chance of them spending much time in jail is slight. I recently had one of the defendants, held on $200,000 bail because he was in the United States on a very temporary visa. I made several attempts to lower the bail or get him released, even filing a writ of habeas corpus. He insisted on his innocence, but was sitting in a jail in Rikers Island when all he wanted to do was go back to his Eastern European home. He insisted on going to trial, but that trial was at least a year away, and he had no chance of getting out on bail during that time. At the same time, the likelihood of him serving any jail time, even if convicted, was minimal. Thus, he could stay in jail for a year to take his chance at trial, or plead guilty, get a sentence of "time served" and be on a plane to Europe within days.
Last week, a Judge in the Bronx did her part to expose one such shameful situation where the defendant had already served more time in jail awaiting trial than the maximum sentence should he be convicted. He was accused of two A misdemeanors and a violation (the A's a re punishable by anything less than a year, the violation punishable by a maximum 15 days) arising out of an alleged assault at Rikers Island. However, the prosecution eventually moved to dismiss the two A misdemeanors and add instead "attempted assault," a B misdemeanor, punishable by a maximum 90 days in jail. By the time of pre-trial motions alone, the Defendant had already spent over 5 months in jail when the maximum penalty he was facing if convicted, and in the unlikely scenario he had to serve consecutive time for both the B misdemeanor and the violation (highly unlikely) was 105 days. Based heavily on these facts, the Judge dismissed all charges in the case.
As the judge points out, as a society, we expect the criminal justice system to provide punishment, detterence, and fairness. Fairness is undermined where we hold the accussed longer awaiting trial than he would serve were he convicted. However, disturbingly and astonishingly, the Bronx prosecutor said in arguing against dismissal of all charges, "there are a lot of circumstances in which people serve the maximum amount of time before they're actually given the opportunity to have a hearing or trial." Think about that for a second. The prosecutor is not talking about cases like my patsies where, a defendant spends more time in jail than they would likely serve, but far less than statutorily allowed. No, she is saying that there are a lot of situations where defendants actually spend more time incarcerated awaiting trial, than the law would allow were they to be actually convicted. If true, this not only suggests a major illness with the administration of justice, but rampant violation of the right to be free from restraints on liberty that underlies the Constitution.
The judge was disturbed by such a representation, and, if true, the public, elected officials, and anyone responsible for the administration of justice should be outraged. But the statement is not true. Instead, it is the statement of a prosecutor who, for reasons other than justice, needs to obtain a conviction. It is an example of a prosecutor trying to leverage pre-trial detention to force a guilty plea for reasons other than the administration of justice. So what is really going on?
A close reading of the case suggests to me that the charges against the defendant are trumped up charges that arose when he got the crap kicked out of him by guards at Rikers Island. There is a brief discussion in the case of a potential civil case. It is unlikely that this refers to the guards suing a guy who can't even pay his $5,000 bail. More likely, the defendant is engaged in a civil action against the State for the actions of the Rikers guards. Thus, the prosecution needs a conviction or guilty plea because it will help defend against the civil rights action either already pending or about to be brought. Unfortunately, this I see all the time. You show me someone suing the city or state after being roughed up by police or corrections officers and I assure you that the defendant is also facing charges for assault, resisting arrest or, at the minimum, disorderly conduct.
The stench of injustice from the Bronx on this one is wafting throughout the city. This prosecutor should be ashamed of herself, and, what is typically one of the best prosecutor's office in the state should be embarassed. It is only fair that I leave you with the words of the distinguished prosecutor in this action. "This case is being prosecuted on its own merits, and, irregardless [sic] of, you know, the civil matter that is pending or soon to be pending...While the civil case has nothing to do with the criminal case, the criminal case does have something to do with the civil case. . . . The criminal case has nothing to do with the civil case, however, the civil case does have something to do with the criminal case."
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