Luna is twenty-eight and under federal indictment for the second time. The first time had been on account of her boyfriend, who asked her to help him sell some drugs. She made a few phone calls, never suspecting that the buyer on the other end was an informant working off his own case for the FBI. She did time in Carswell before she was “returned” to Mexico.

She is a Mexican legally, but not really. Her parents had brought her to Texas when she was young, and she’d grown up here, graduated from High School here, had kids here. But she isn’t a citizen and she’d been caught dealing drugs and that’s that.

In Mexico, she tried to make a go of it by living with family that she’d never met before. At least she spoke the language. She called her kids, who remained in Texas, daily. Every so often, they Skyped. After a while, though, she decided that she wanted to hold them again so she violated the terms of her release and tried to come back. She was caught at the checkpoint. Now, she’s in the Winkler County Jail.

“Luna!” Liz says as she walks in, “what have you done? I’m so sorry for you!”

Luna explains that there were no drugs this time, just an attempt to come back to see her girls. “But the guidelines. Don’t you remember the federal sentencing guidelines?”

Liz lays a chart on the table.

“Your base offense level is here,” she says, pointing with a pen. “But you were deported for a drug crime, which means you’re catching all these extra levels. Plus, that prior case gives you criminal history points. Plus, you were on supervised release when you tried to come back: more points! It’s bad!”

“How bad?”

Liz puts down the pen. “Even at the bottom of the range, you’re looking at about five years.”

Silence.

“I mean, you can try it if you want to, but you’re not gonna win it. You were caught at the checkpoint. You have a prior drug conviction. You can’t dispute any of that.”

“But five years …”

“The system punishes people for going to trial. The judge can make it worse than five if you lose. And he will. Trust me.”

“But what about my kids? I need to raise them.”

“How old are they?”

“Seven and nine.”

Liz folds her hands and places them on the table. “I’m sorry, honey, but you’re going to have to find somebody else to raise your kids.”

Cross-Posted from Human Rights in America.

Slate has run an interview with law professor John Pfaff, who suggests that, contrary to popular belief, America’s mass incarceration problem is not a result of the war on drugs or longer prison sentences. Instead, he posits that it’s the result of prosecutors charging more felonies than they used to. [According to Pfaff, between the years 1994 to 2008, the probability that a district attorney would file a felony charge increased from 1 in 3, to 2 in 3.] Pfaff doesn’t know the reason for the increase, nor does he know how to combat it. This brings up some interesting questions.

First, why are prosecutors charging more cases these days? Well, why not? With a national plea rate in excess of 90%, it’s painless. It makes good political sense to indict 2 in 3 cases if you know that they’re both likely to plead. That way you can be “tough on crime” and lazy at the same time.

Second, how do we discourage prosecutors from bringing too many charges?  It seems to me that taking more cases to trial would help. If prosecutors expect the cases that they indict to be tried instead of pled, they’re much less likely to pursue weak cases or cases with unserious charges. This will have the laudatory effect of both minimizing the risk of innocent people going to prison, as well as making sure that our prisons only hold people who really need to be there.

Of course, legislatures can help with this by jettisoning the draconian drug sentences that exist in this country, and replacing them with sentences that are reasonable. After all, it’s longer sentences that compel defendants, even in cases where the evidence against them is weak, to plead guilty. If, however, the sentences were such that going to trial were more frequently worth the risk, more trials would happen, forcing prosecutors to prioritize. That would get the charging rate back down to 1 in 3 pretty quickly, I bet. And maybe it won’t even be that much longer before the United States no longer has the largest prison population in the world.

Related:

The Prison Problem (David Brooks, 29 Sept. 2015)

Jury nullification occurs when a jury decides to ignore the law. Why would anyone ever want a jury to do that? Well, there are a lot of unjust laws out there. What is an unjust law? According to Martin Luther King Jr. [pdf], “an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

Even though Justice Scalia probably sighs loudly whenever someone utters the phrase “natural law,” I’m going to talk about it anyway. The fact is that some pretty bright and historically significant people have relied upon natural law. Martin Luther King was one of them. Thomas Jefferson was another.

What I would expect any judge to be even more uncomfortable with than allowing natural law arguments in courtrooms, is continuing the practice of not allowing them, as that seems to infringe upon one of the central principles of a defendant’s right to due process: the right to be heard.

The most sacred of interests, a person’s liberty and reputation, are at stake in criminal trials. As such, we must be certain that all possible arguments in favor of the preservation of each are allowed. If we do not empower jurors to at least consider the merits of a law which, at least in theory, they have already approved, then we engage in an exercise that is little more than a show trial. This may go a long way toward satisfying our desire for expeditious process, but it must go a very little way toward satisfying our demand for justice. It is not enough to merely apply the law. We must also inquire into the law’s morality. Dred Scott, let us never forget, was once the law.

When we consider that the United States “has less than 5 percent of the world’s population, [yet] has almost a quarter of the world’s prisoners,” how can we deny that many of our criminal laws remain deserving of whatever scrutiny is available? Such a prison population represents a failure of democratic government and the jury trial, which is perhaps one of the purest forms of democracy devised, is a way to fix it. By preventing arguments on nullification, however, the courts do not allow for meaningful trials. Instead, they are content to send millions to prison who may be factually guilty, but morally innocent. That is shameful.

[For a more scholarly and academically supported argument on this issue, please see this pdf.]

Related

Jury Convicts Ex-Pastor Who Shared Jury Nullification Fliers

Judges should abandon the doctrine of stare decisis and welcome the citation of non-legal texts in attorney briefs. The power of an argument derives from the quality of its reasoning and, to a degree, its poetics. There should be no power in its “position,” such as the fact that it originated in a court. The benefit of being on a court should consist solely in the fact that judges enjoy prominence in our society and, as such, their words garner more attention than those of other citizens. Judges’ words should be given no additional power simply because of the judge’s title.

The Ancient Greeks understood this. Cleon was more prominent than Diodotus, but his argument, being barbarous, failed. On the other hand, Pericles was adored, not because he was an important figure in society, but because he was a clear and eloquent thinker.

I recognize that becoming a judge is difficult. It suggests a level of persistence, intelligence, integrity, and wisdom that is uncommon in most people. It suggests this; it doesn’t guarantee it. William Rehnquist was Chief Justice of the United States. He was also a drug-addicted hypocrite whose judicial philosophy was to decide cases according to his personal prejudices. His First Amendment jurisprudence made that plain. I say good riddance to William Rehnquist. Stare decisis, however, says Rehnquist lives.

Of course, if a judge’s opinions are worthy of guiding us beyond their authors’ corporal lives, that’s fine. There have been great minds in the American judiciary (Brandeis and Holmes come immediately to mind) whose opinions are deserving of special and continued consideration. But such minds are rare. We should not pretend that every judge is of such caliber. Yet that is how stare decisis works; James Madison’s and Jean-Jacques Rousseau’s comments are merely “persuasive,” while Warren Burger’s and Sandra Day O’Connor’s are “binding.” This is ludicrous. [Ironically, Justice Thomas might agree with me.] Instead of following people just because they happen to be a judge, let’s treat nothing as binding and everything as persuasive. The question then becomes what is most persuasive.

But what about predictability? Won’t unmooring the courts from precedent result in chaos? No. Abandoning stare decisis will not untether courts from the pursuit of reason and truth. These things are timeless. They will forever form the basis for all quality opinions, legal or not. By abandoning stare decisis judicial legitimacy and consistency will come not from adhering to a rule simply because, good or not, some prior court said it was the rule. Rather, it will derive from the repeated application of the best rules simply because they have proven to be the best rules.

This is, in fact, what happens anyway. Courts part with precedent when it’s obvious that they must (Dred Scott no longer controls, thank god), but this process takes too long. It results in bad opinions having an unacceptable level of control over our society. It also discourages diligent attorneys from mining mankind’s vast, non-caselaw-related, intellectual riches for gems.

So, let’s abandon stare decisis. Let our jurisprudence be guided by bright lights of thought wherever they may be found. Let the grip of mediocre opinions written by lesser jurists retire when their authors do.