Mindset (Part 2), 8-22-2010

 My plea agreement does not allow for an appeal unless the judge sentences me outside the guidelines. A judge doing this is about as likely a creature as a Muslim eating pork barbecue. Without access to the appellate process, lawyers can only hope in persuading a trial judge on how to apply the advisory sentencing guidelines. In the appellate courts reside the power to change the sentencing of a criminal defendant. Bound by training, lawyers imitate Sisyphus and keep rolling along.

Lawyers wanting to change the federal sentencing guideline must deal with the public. My writing would have allowed – and, I hope, allows – for such an approach. I still not understand the last comment made by my lawyer on this subject: “We do not want to make anyone angry.” Who could we make angry at whom? I cannot see Judge McKinney sentencing me to less time than recommended by the U.S. Attorney's office. So, I cannot see how I can anger the judge to my own detriment. Surely counsel has no concerns about anger directed at him from either the judge or the prosecutor's office. If I were uncertain about the honesty of my writing or my motives, I would have doubts about my efforts altogether, I wrote what I wrote to absolve my conscience to serve the public by atonement. Misstating facts would be a falseness justifying anger. I have written what I have seen and what I have done without feeling any need for self-protection. I agree one may disagree with my conclusions, but even with them, I have strenuously avoided self-serving comments. No, I have tried hard not to be self-serving.

Lawyers have no training in how to deal with the public. I will say I miss dearly my law blogs, for I did think I was helping the public (albeit in a clumsy way). I will go so far to say that lawyer blogging to public contains the possibility of altering the legal profession for the better than has any technological advance in human history. The legal profession and the public are but in the infancy of this change. I cannot expect a person who confessed himself as computer illiterate to understand the tool available to himself, let alone be comfortable with this tool.

I must admit, my mind worries over the lack of scrutiny allowed by the plea offer. Mine is not the only one cutting off from review and supervision by the appellate courts. The media has no interest in these cases after the initial scandal of arrest. Without appellate review and pliable trial judges, the judicial process become a process. The federal prosecutors do not need to justify the justice, cost, or prudence of their positions. Any questions about justice or cost or prudence are handled by pointing to the legislature's creation of the federal sentencing guidelines. You, as well as myself, bear the burden of supporting this system.

Would the media take a serious look at how our federal government runs its criminal justice system? Not without some angle providing conflict which can be exploited for sensationalism. I say cost and I mean cost, I mean cost therein should lie the interest of the taxpayers. I would think even a journalist can understand the mathematics of incarceration and how to balance those against its proponent. The question that ought to be put to the government is this: what do the people get for how the federal sentencing guidelines deal with non-violent, non-economic victimless crimes?

When I wrote cost above, I meant specifically the expenditure of federal dollars. Injustice has its costs, too. Again, the journalists do not question, but only accept the government's case. The media never delves into the sense of mass incarceration, or, more specifically, the federal sentencing guidelines. Activists will say a stringent law is needed to protect the public.

No one questions the activists – either in their premises, or in their products.

No one questions the doctrine of deterrence.

I did not know of the federal sentencing guidelines until my lawyer gave me a copy of United States v. Dorvee. Political grandstanding brings into question the idea of deterrence and the justice of the guidelines themselves.

I do not see either the federal sentencing guidelines or the federal system's mandatory minimum sentencing promotes reformation or anything but battering and warehousing the convict. Families Against Mandatory Minimums is working on this issue. I am sure someone shall think – what is wrong with a punishment that does not reform, that warehouses? I can only answer, what kind of person do you want emerging from your prisons?

sch

[This may be the one piece I can say that surprises me how the changes for the good have occurred over the past 13 years. Some people have raised the issue of mass incarceration. Not enough, but it is out there. OTOH, I heard Senator Graham arguing that stiffer punishments will deter the fentanyl trade. History does not support this. Stiffer laws will increase profits, therefore increasing trafficking. No one has questioned the very idea of criminal laws as an effective deterrent to criminal behavior. No one has asked if there are other ways to deter criminal behavior. It is still possible to raise the cry of a politician being soft on crime, even where the harsher punishments fail the convict, fail the taxpayer, fail the country. I had to do some editing from the original to get this one past my monitoring software. It is continued and concluded in Mindset (Part 3), 8-22-2010. sch 3/12/23.]