April 21st, 2009 | 3 Comments
A little while back, I overheard a defense lawyer loudly explaining to his client why a prior felony conviction could be used to enhance the client’s sentence. The client was looking at a fair amount of mandatory prison because of an old aggravated DUI and kept asking why he should receive harsher punishment because of an old conviction for which he already did time.
I think those are fair questions. In Arizona, an aggravated DUI is forever an historical prior felony conviction. Once you’ve been convicted of aggravated DUI, you will always be looking at an enhanced, mandatory prison sentence if you are later charged with pretty much any felony. That aggravated DUI conviction will follow you around for the rest of your life, resulting in worse plea offers and giving you powerful incentive to take them because of the risk of guaranteed prison. It’s something that comes as a surprise to most defendants.
I think it’s ridiculous to make any DUI a felony in the first place, but it’s even worse to give it particularly severe consequences. Other convictions that serve as eternal priors are things like dangerous crimes against children or offenses involving a deadly weapon or dangerous instrument. Adding DUI to that list is an example of anti-drunk-driving hysteria at its worst, and I can see why clients have problems understanding it. Clients often say things like “I made a mistake, it was years ago, I did my time, and these new charges have nothing to do with DUI…I can’t believe I’m looking at this much time.” Those aren’t bad points.
The lawyer I overheard, on the other hand, didn’t seem to see any problem with the situation at all. He was saying all the things a prosecutor would say. He went into great detail about why repeat offenders should get harsher punishments, trying to make points about the need to deter future misconduct and how those who violate the law on more than one occasion have a more culpable mental state and thus deserve greater penalties. Needless to say, the client didn’t care about how the law could be justified under deterrence-based or retributive theories of punishment. It sounded like a law school lecture, and all the attorney accomplished was to royally piss off his client.
If they ask, I tell clients why I believe certain laws are the way they are. However, I can’t recall ever trying to justify a law to a client. That’s not my job, and a lot of the time, I’d end up trying to justify the unjustifiable. I don’t have to convince my client that he’s being rightfully prosecuted. Many Arizona laws are terrible. Quite a few of my clients are being prosecuted for things that shouldn’t be illegal. Justifying a law to a client isn’t going to help the client, and it certainly isn’t going to do anything to improve the attorney-client relationship. I defend people, not crappy laws. I really don’t know what that lawyer was thinking.