Commentary: A Prosecutor's Response to "Too Much, Too Many"

Christopher Russell, Commonwealth's Attorney and adjunct professor at W&L Law.

Christopher Russell, Commonwealth's Attorney and adjunct professor at W&L Law.

The following is a response to "Too Much  & Too Many," the cover story of the most recent issue of the W&L Law alumni magazine. The author is Christopher Russell, Commonwealth's Attorney for the city of Buena Vista, Virginia and director of the public prosecutor's externship program at W&L Law. 

I wish to offer a few thoughts in response to Stephanie Wilkinson's well-written cover article "Too Much & Too Many" examining faculty perspectives on the criminal justice system.

As Justice Kennedy wrote in a recent U.S. Supreme Court opinion, "criminal justice today is for the most part a system of pleas, not a system of trials." (1) It is true, as Professor King notes, that defense lawyers sometimes meet a client for the first time in the courthouse hallway on the day of trial. Prosecutors wonder why this occurs given the resources of the defense bar.(2) Some of the same defense lawyers who cannot manage to speak to a client before the trial date often find ample time before trial to file procedural objections with an eye towards a plea deal. For example, a 2009 Supreme Court ruling that reversed decades of Confrontation Clause jurisprudence has needlessly stalled prosecutions of drunk drivers and drug dealers and others who threaten our public safety. Defense lawyers use the ruling as a bargaining chip. An objection is waived in return for lenient treatment of a guilty client.(3)

Plea deals almost never result from innocents who are wrongly accused yet choose to mitigate their misfortune by voluntarily agreeing to suffer some punishment. Instead, they overwhelmingly result from prosecutors who agree to requests for leniency, probation and other alternatives to incarceration, all of which saves the justice system time and money. To Professor Bruck's point that by having a death penalty at all, "we create the illusion that every other punishment is mild," the reality is that in huge percentages of cases involving drug crimes, property crimes, non-felonious assaults and traffic crimes including DWI, punishment is mild. Don't take my word for it. Visit your local courthouse when sentencing hearings are conducted.

As esteemed Virginia Beach Commonwealth's Attorney Harvey Bryant noted in a recent op-ed in the Virginian-Pilot responding to U.S. Attorney General Eric Holder's comments about incarceration levels in our country, "it's not that easy to get into a penitentiary. Those who contend that there are loads of nonviolent, low-level offenders serving lengthy sentences need to provide the names and criminal histories of those prisoners. … Almost no one goes to prison for their first-offense burglary, grand larceny, car theft or other nonviolent offenses."(4) Furthermore, many first-time drug offenders, even those who admit their guilt, receive deferred adjudications; in other words, they are not even convicted, let alone incarcerated.(5)

As Judge Louis Trosch commented in the article, probation officers are indeed overloaded with work.(6) A big part of that problem is that success on probation can be elusive. Prosecutors and probation officers spend significant time proceeding against recidivist convicts who did not go to jail for their crimes and yet did not follow the rules of probation supervision.(7) Having been given a second chance, their own actions make the case for more stringent forms of retribution and deterrence.

There is no better example of why some Americans believe in the need for more, not less accountability than in the tragic realm of domestic violence and sexual abuse. These conditions exist at epidemic levels in our society. Yet persons who abuse intimate partners and other family members are treated with more leniency by our criminal justice system than nearly any other group. Even abusers who are not exonerated generally suffer fewer consequences and fewer probation restrictions than first-time drug offenders or teenagers who get speeding tickets.

Worse yet, vigorous prosecution of domestic abusers has negative consequences for victims. Their experience during the course of a prosecution can be analogous to a re-victimization. The trend is especially evident in cases involving child victims of sexual abuse, but touches many who suffer at the hands of a family or household member. To borrow some phrasing from Professor Luna in the article, this comment is not intended as a slam against defense lawyers, but a lawyer's duty to her client, when the client is alleged to be a child predator, brings its own issues, its own collateral consequences.

Domestic abusers need to experience meaningful accountability when they inflict physical injury on others, sometimes even when the victim has 'forgiven' the offender and asked the Commonwealth not to pursue a criminal charge. Cases like those, most of them misdemeanors, are common even in a tiny jurisdiction like Buena Vista, Virginia. A frequent complaint I receive for pursuing such a case to trial goes something like: "why are you pushing this case when the family wants it dropped?" I have spent some time considering these questions during the past 12 years. Apart from my desire not to sanction the intense pressure an accused abuser frequently exerts on a victim to recant, I have concluded that more appropriate questions are: "why does physical violence exist within families in our community, and: what can the justice system do to impress upon batterers that violence will not be tolerated?" Unfortunately, for many victims, the consequences for offenders and repeat offenders are "Too Little & Too Few."

References

1. Laffler v. Cooper, 132 S. Ct. 1376, 1388 (2012).

2.Public defenders, many of whom are paid higher salaries than their prosecutor counterparts, handle a significant portion of the indigent criminal cases in Virginia. (2012 statistics demonstrate that Assistant Public Defenders have a starting salary of $48,183. By contrast, entry level Commonwealth's Attorneys earn $45,385. Some Assistant Commonwealth's Attorneys earning $45,385 handle capital murder cases. A separate Capital Defender office where lawyers earn a minimum of $73,216 handles the public defense for these crimes.) Some defendants who initially request and qualify for a court-appointed lawyer find the means to hire private counsel before trial. Many indigent defendants are assigned other lawyers like Professor King who are not employed by the public defender commission. Private practice lawyers throughout Virginia actively seek court-appointed criminal defense work. Apparently they are not deterred by a fee cap, for in some nearby jurisdictions, private lawyers compete for priority on a court-maintained roster.

3. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The case prompted a significant revision of Virginia's criminal procedure code that encouraged defendants to more aggressively assert their age-old right to cross-examine state forensic scientists. Defense lawyers in drug cases and impaired driving cases now routinely file a demand for the state to arrange the cross-examination, invariably delaying trial in order for the Commonwealth to subpoena the scientist who tested the drugs or blood in a laboratory. But when trial day arrives, these lawyers actually question the scientist in court in only a miniscule percentage of cases in which a demand is even filed. It is easy to conclude that the procedure is almost always employed as a bargaining tool.

4. http://hamptonroads.com/2013/08/too-many-prisoners-not-really. Harvey Bryant is a board member of the National District Attorneys Association, the Virginia Association of Commonwealth's Attorneys, and the Virginia Sentencing Commission.

5. See, for example, Virginia Code § 18.2-251.

6. So are rape crisis shelter workers, child protective services staff, civil legal aid attorneys, and public mental health advocates to name just a few other occupations that fit the description.

7. As of August 2, 2013, the Rockbridge Regional Jail housed 123 inmates, 30 of which (24%) were incarcerated in connection with probation violations.

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