When we started this short series together, we uncovered more than a few layers to an already complex problem as well as a list of uncomfortable truths. In fact, our main discovery seemed to be how hard it is to really nail down a proximal cause for the diagnosis of one of society’s most insidious diseases – mass incarceration.
We had several false starts, and we spent some extra time in some deep rabbit holes. But we learned a lot about the problem, about society, and (I hope) about ourselves. On one hand, much of it was quite dark.
The police profile people, they abuse permissive policies, and they just know that only criminals don’t confess. Meanwhile, the collective force of an army is deployed with some pretty stretchy rules of engagement, against us in an unending peacetime war where suspicious behavior could be criminal behavior…could be gang behavior…could be radicalizing behavior…could be lone actor behavior…could be terrorist behavior. And sometimes they get it wrong – horribly, horribly wrong. Other times they just can’t stand the sight of the filth over whom they’ve been given so much authority.
On the other hand, sometimes even these horror stories have an unexpected redemptive twist – though the ones that do are far fewer in number than the ones that stay true to genre to the bitter end. According to 2015 data from OPPAGA Report No. 17-05, post-conviction relief motions (including but not limited to plea withdrawals) account for about 19.6% of all criminal appeals filed in Florida. Of these, less reliable and less current data from more varied sources (including a 1996 Florida Supreme Court committee report) suggest that anywhere from less than 5% to less than 15% are ever granted by the district courts (note that district courts are not usually the primary jurisdictions for such motions and so such data provide an incomplete picture, although it certainly suggests an unwillingness on the part of district courts to overturn trial court denials of post-conviction motions, however often or not those denials may occur). And about 11% of inmates in Florida earn enough gain time for good behavior that they get released on their earliest permissible date (citing 2019 data from OPPAGA Report No. 19-13).
So, how are our prisons still filling up to the brim if not every arrest leads to incarceration and not every prisoner stays their whole bid? Shall we dive a bit deeper?
If we follow every track we’ve found so far, we’d run in circles within circles.
But three sets of tracks stand out. After the trail on our victim goes cold in the jail, we pick it back up going to the courthouse. Something has happened in that interval, to be sure. The rebellious, skidding tracks of feet still fighting even on their way into the jail have now turned into the short, nervous shuffle of cowed humans in four-point restraints. Now turn your eyes to the prints of patent leather and platform pumps leading into the same courthouse from the other side.
Two of these firmly laid prints lead inside to opposite ends of each courtroom, and one leads to the bench. You may notice that these tracks are – but for the necessity of bailiffs, jurors, stenographers, and the occasional witness – virtually the only tracks present beyond the courtroom’s gallery. That is, beyond the symbolic gate-like feature called the bar, which separates the sphere of the citizen from that of parties to the case and officers of the court (a formal title for lawyers). It is here on this side of that perambulation prophylactic that our villainous victims spend their last moments before either being released or, as in the vast overwhelming majority of cases, sent to prison.
We can try to see what’s going on in the jail, but – as a solemn matter of security – our efforts to test the transparency of a system meant to keep us safe would be thwarted before we even tried; and we’d be distracted by all manner of irrelevant, though helpful-looking, information. Eventually, assuming we kept trying, even our most righteous diligence to access crucial megabytes of public information will fall under the sanctified scrutiny of a massive legal department as well-trained and well-equipped as their SWAT teams. However, we can still catch glimpses of our incarcerated subject at the courthouse. We can see what happens there (besides the half that never gets told) …if only we care to look. Let’s take a seat close to the bar and watch with the rest of the coliseum’s rapt audience.
Several dozen cases later you may wonder what, if anything, we’ve learned. And you’d be asking a good question. Most of the cases were passed for another so-called “status hearing” at a later date. Of the ones that were concluded (using an annual national average of all criminal convictions in America which has held for some years), over 90% of them were resolved by a guilty plea. 98% in 2019, citing the Pew Research Center.
At first, you may feel relief that so many defendants choose to not put their victims and the courts through the ordeal of trial. But eventually it may occur to you that 90-plus percent of them can’t be that noble. Also, you may rightly wonder why some of them plead guilty with such weak cases against them, or when the negotiated sentence is so high. What do they stand to gain? What have they avoided losing?
A hint at the destructive power at work keeping millions of people incarcerated year after year is the fact that these questions are virtually unanswerable. The negotiated plea preempts the fact-finding process of a fair trial in an open court, closing the case without any real transparency as to why.
Does the trail go cold here? Will we never fully account for everything that’s happened to the missing millions between arrest and imprisonment? Or do any of the tracks we’ve been following lead eventually to the real culprit (or culprits) behind the economic, cultural, and psychological genocide that is mass incarceration?
To attempt an answer to these questions, we must take a step back from the case. For to say a crime is occurring is to say that some law has been violated. My choice of words above should be blatantly metaphorical, more moral than juridical in tone; nevertheless, there are a couple of things in this particular rabbit hole I feel compelled to show you.
Even if you accept the fact that there is a discrepancy between the rate of crimes allegedly occurring in our nation and the rate at which real people like you and me (not just numbers or unfortunate mug shots) actually are going to prison, there is still a question of whether anything illegal is occurring because of (or as evidenced by) that discrepancy. Are judges abusing their authority? Are defense attorneys letting their clients down? Are prosecutors violating defendants’ constitutional rights?
Well, through the colossal obfuscation of fact-based justice that is the guilty plea, the answer is a muffled, “not necessarily”.
A defendant typically enters a guilty plea when – A) they are truly guilty, or B) when they are convinced it is the best option for them at the time. This is crucial because, although people are in fact sometimes prosecuted for crimes they simply didn’t commit, much of the time that people are wrongly charged, convicted, and/or sentenced it comes down to matters of degrees. The difference between justice and injustice becomes the difference, not between guilt and innocence per se, but between the original charge and lesser included offenses – between admissible and inadmissible evidence – between a bevy of issues intended by our constitution to be laid before the adversarial proceedings of an open court. That is, to be tested by a jury of peers and guided by honorable judge.
Not all crimes that occur are, in fact, prosecuted (and not just because the “bad guys” get away…not by far). Police sometimes just let people go if they feel, given their training and experience, the situation doesn’t warrant enforcement. And while it is true that this may hardly apply to more serious or violent felonies, which themselves may well turn out to be common features of the cases that contribute most to prison crowding (one of a number of theories), there is a larger point here. Remember; even after police decide to make an arrest, prosecutors can and do sometimes drop charges. Furthermore, if they don’t, a judge may still be compelled to dismiss a case. All of these can happen – and not just because of well-exploited loopholes but also, very importantly, because a weak case pursued beyond constitutional bounds, regardless of what has allegedly occurred, does more damage to the legitimacy of our social institutions than most convictions could ever hope to repair for victims. And then there are appeals.
The conceit here, ultimately, is that guilt – and therefore crime – is a spectrum, an ever-resolving blurry picture of reality, an elephant in the courtroom being described haphazardly by many bling hands, a quasi-truth monopolized by no human, especially not ones paid by the government.
Our courts are not, however, allowing 90-plus percent of defendants to be convicted of things they simply didn’t do. But the overwhelming majority of defendants don’t know the law the way a lawyer does. So, when confronted with serious charges and few options, and when considering a relatively large amount of time in prison, pleading guilty may start to seem like the best option. That is, even if you only did half of what they said and then, years later, you discover that they cut a few constitutional corners to clear their docket.
An obvious question may be, “Why would an attorney advise their client to plead guilty if the case was weak?” In an ideal world, they never would, but that’s not the world we live in. Now, I’m not saying most defense attorneys are twisting their clients’ arms into prejudicial plea bargains. Yet even a lawyer does their job and simply relays the law applicable to the facts of the case as they stand, things can get real scary real fast, especially if you feel real guilt for whatever part, you may have played in the criminal events at issue.
And the sad reality is that a surprising number of attorneys out there, susceptible humans to the bone, are guilty of case-trading. Does this alone explain prison crowding, though? Is our astronomical incarceration rate the result of a sad mix of two parts fear, one part office politics? Personally, I think we’re getting close. But I don’t feel confident that this is the whole story. It doesn’t end here. Case trading takes two to tango, as they say, which means prosecutors must be complicit in the alleged conspiracy as well. But this just means that at the end of the day, the real fault lies in the opportunities allowed to abide and to attract the cheaters who otherwise may have been honorable public servants. To say nothing, that is, about the other faults they enable in the process, the other layers of oppression accumulated by generations of such extra moral self-licenses.
In the dark beyond the edges of society’s blinders lie many temptations that ensnare a nation. How deep does this rabbit hole go? Will you follow me deeper? Can there be a way out?
All I can say for now is that our work is far from done, much like this essay. Join me soon for Part Three. Until then, love your freedom, and let the ones you love live free.
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