Spewing Over Systemic Failure

Scott Greenfield, who I’ve come to look on as a long-distance mentor, begins a blog post today:

Before getting to the beef of this post, I ask that hotter heads cool.  There have been a few posts lately about issues raised by Nebraska federal judge Richard Kopf, and some readers disagree strongly with Judge Kopf’s views and show no reluctance saying so.

A minute later in the same post, he states:

So rather than using this as an opportunity to snarl and let the judge know how much you hate, try to see this as an opportunity to make a dent in an attitude that could use a more persuasive tone. Someone’s life may depend on it someday, and that’s more important than your having a chance to spew.

My post isn’t about Judge Kopf. It is, in a word, about “spewing.” And, as the article title would indicate, it is about spewing over the systemic failure of our judicial system, our prosecutors, our law enforcement systems, and, essentially, our society. We have created a mess. And “spewing” is the least messy result.

One reason I don’t blog as much as I used to is that the longer I’ve been practicing law, the more I’ve come to believe that there is a systemic failure which I am not at all certain is curable. This has led me on more than one occasion to “spew.” Without exempting other courts, nowhere is this more true than when it comes to juvenile law courts. ^[1]There is no real juvenile law anymore. We make it up as we go. If we’re really good at moral suasion and — don’t forget the and — lucky, we get the courts to do less harmful things. But that has everything to do with our abilities at moral suasion and (more importantly?) luck, and pretty much nothing to do with the law.

In my “spewing,” I have gone so far as to state that if the government will not follow its own laws, neither should anyone else. I have occasionally talked about the need for a revolution, and I have indicated that I don’t care much what type of revolution it is.

Nor do I really regret taking this position. If you were a non-cowardly ordinary law-abiding citizen walking down the street, and you saw someone — I’m not talking about the uniformed criminals here, who beat children (Update 5 / 25 / 2017: Link broken, removed), often (6/2016 update: link broken, removed) with impunity, but one of the ordinary sort — beating the crap out of a small child, you would not “try to work within the system” to get them to stop. You would not stand there, using mere words in a vain attempt to “persuade” the assailant to stop beating the crap out of the child.

No, and you would not even just “spew.” You would intervene with whatever force was necessary to stop the attack.

Yet, at the same time, Scott is obviously right. I haven’t asked him, but I suspect he might think that my analogizing from the “ordinary criminal” beating the crap out of a child on the street to what the legal system does is, as the courts like to say in their whitewashing opinions, “inapposite.” I know a lot of other people think that way.

And that’s why I haven’t been writing as much.

You see, the thing is — as you should have guessed by my comment about seeing Scott as a long-distance mentor — I have a lot of respect for Scott Greenfield. I believe, and I have told him, that I would be a much better lawyer if I’d had the ability to work closely with someone like him from the beginning of my legal career. Not to get too far astray from my topic, but Scott has what Aristotle called ethos, or the ability to convince because of the character of the author.

Because Scott possesses ethos, though I am not otherwise convinced, I have felt the need to at least try to restrain myself from “spewing.”

Because I have been trying to restrain myself from spewing, I have found it hard to blog. Whenever I start to write about something that I think needs to be talked about, the bile begins to boil, and I start to spew.

My experience — I am in courtrooms in California almost every day of the year — is that the system is a complete failure at what it is supposed to be doing. In fact, it is worse than a failure, because it is creating the very thing that it should be trying to prevent: a lawless society.

You see, no one really needs me to say that “if the government will not follow its own laws, neither should anyone else.” It’s just the natural consequence of an arbitrary system whereby a particular group of people — judges, police officers, prosecutors, politicians, the oligarchs of modern America — lords it over the rest of us. It is what happens as people chafe under those who believe they are our “Overlords.”

That attitude affects virtually every aspect of our society these days. It impacts drivers who, seeing that the officer is too busy trying to get home from work, have no fear of breaking the speed limit themselves. What’s he going to do? Stop them? Hell no! Can’t you see he’s in a hurry to get home? Other “minor” crimes go uninvestigated and unpunished because cops are too busy harassing minorities to worry about your car having been broken into. House burgled? Report it online; most of the time the cops just can’t respond. If you ask me, the disrespect for law endemic in our society today is responsible even for things like the economic shutdown. Why do I say that? Because “Obamacare” as the law — passed by the legislative body, upheld by the United States Supreme Court — is unassailable. But a few Representatives don’t like that it became the law, so they are willing to shut down everything until they get their way.

We are supposedly a nation “ruled by laws, not men.” When a few men shut down an entire nation because they don’t like a law, well….

Our courts are no better. Returning to the situation in the juvenile courts, where I spend about 30-to-40-percent of my time, as various parts of my caseload, the market, and the work at the District Attorney’s Office fluctuates, it’s as if we’re deliberately working not to rehabilitate — which is the statutorily-defined mission of the juvenile courts — but to create an ongoing class of people who will never escape exploitation, and who will have little choice, if they are to survive, but to commit more crimes.

Recently, I represented a 17-year-old girl who had never been charged with any crimes previously, who made a stupid mistake. I knew it. Everyone else knew it. She knew it. So she intended to admit to her wrongdoing, take advantage of a deferral program that would allow her another chance at a crime-free slate if she stayed clean and demonstrated that she was rehabilitated for one year. I made the mistake of wanting to be sure she was fully informed about the program, rather than have her admit — even for Deferred Entry of Judgment purposes — on the day of her arraignment, when I first learned she was eligible for DEJ. We told the judge there would probably be a resolution at the next court hearing, but that I wanted to fully explain DEJ to make sure she made an informed decision to participate. But when we returned, the prosecutor filed — while I was telling the judge my client wanted to make a DEJ admission — an Amended Petition. The Amended Petition alleged a strike.

DEJ was no longer an option. Nor can she seal that record when she turns 18. Not even if she really did learn her lesson, and never commits another crime in her life, will she be free of that record.

Maybe she’ll still be able to realize her dream of becoming a nurse. Maybe.

But if her record means she cannot ever find a decent job….

That same week, I represented a 13-year-old with mental health issues. From looking at him, I’d guess he’s about four-and-a-half feet tall; a pudgy little boy. When he gets upset, he curses. He says some vile things. He throws temper tantrums like someone ten years younger than he is. And because he cussed at a teacher, and told a school security officer he would throw a chair at him and break his glasses right in the middle, he was charged with a felony assault on a school officer. The charge was absurd. And there was no likelihood of any harm coming to the officer.

Set aside the fact that when I was a kid, this would have resulted in no criminal charges — maybe laughter, but no criminal charges — my efforts to have it reduced to a misdemeanor were initially rebuffed. On the day of trial, the prosecution finally agreed to a misdemeanor admission. Even at that, it’s ludicrous. But the way California law works, the likelihood that the officer would actually be hurt is not relevant. In some alternate universe, he could have been hurt. Nor does it matter if the officer was not frightened: his subjective belief concerning “the threat” is likewise irrelevant. Only “the intent” of the child to interfere with the officer’s duty matters.

And if we need more proof that the system is not built for rehabilitation? The court, in that same case, ordered the Probation Department to take him for a mental health assessment that had been scheduled prior to his incarceration. This order was not followed. The only consequence that followed was that the minor’s case  with the mental health department was closed.

It’s just a guess on my part, but I’m betting getting that kid mental health care would go a long ways towards rehabilitating him.

Meanwhile, in twenty-three states, children as young as seven can be charged as adults. Every year a quarter-of-a-million children are. Any given night, 10,000 children are held in adult jails and prisons, where they are frequently locked down for 23 hours a day in order to keep them safe.

Yep. Solitary confinement. For children. That can’t be bad, can it?

And let’s not even get started on adults where — at least in California — we expressly made the idea of rehabilitation subservient to punishment. And that punishment has become a perpetual punishment from which few can ever recover. In California these days, nearly all crimes come with a life sentence. Either behind bars, or “on the outs.”

I try not to “spew.” After all, while my “spewing” has so far created some converts — convinced more privileged white people that things are as bad as I say they are — it hasn’t done much to fix things. The failures of our system are like the waves of the ocean. My job these days is simply to rescue as many starfish as possible.

Yesterday, after a quite long argument — one so long that several times I nearly gave up — a judge said, “I am reluctantly convinced by your argument.”

So, I don’t know. I’m sure Scott is right. And he carries the ethos to sway me. I could not help but notice, as I wrote this post, and linked in old articles I’ve written, that nearly every one of them contained at least one sentence that read: “Scott Greenfield says….”

But I hope Scott, too, understands how hard it is not to need to “spew” every now and then.

As I said, it’s the least messy outcome of a systemic failure.