» Clients, Government Rants » A Victim of the Drug War

A Victim of the Drug War

I recently had a settlement conference for a client I really like. He’s a nice guy who never ceases to make my days a little brighter each time I see him. When I first met him and asked if he had any criminal history, he told me, “I have a terrible criminal history…terrible!” He said it like he was Richard Pryor in the middle of a stand-up routine, but it turned out he was right. Indeed, he was no stranger to the system. Based on his honesty, however, I knew was going to like him.

He had a lot of prior felony convictions. Looking through his past, though, I could see that he never really hurt anyone except himself. He was an addict, and he kept getting busted. He never got a break. He never conquered his demons. His personal drug habit eventually led him to make small-time sales, and by the time I met him, he’d amassed a significant criminal history. He stood accused of making five separate crack sales to an undercover officer. They were all videotaped and partially witnessed by other officers.

Because he was on parole at the time and due to his priors, he faced a ludicrous amount of time. By my calculations, confirmed by the settlement judge and prosecutor, best case scenario losing at trial was virtually guaranteed to be no less than 31.5 years flat. By “flat,” I mean he’d have to serve every single day. No early release. He’s approaching forty and has a son who is a toddler.

I always tell clients there are two kinds of settlement conferences, the kind where the judge is going to scare them into pleading guilty and the kind where the judge leans on the prosecutor to make a better offer. This one was a little of both. The judge we chose always gives this incredible speech that can make damn near anyone plead guilty. That’s probably why the prosecutor wanted to use him. I wanted him because I knew a settlement in front of him was my client’s best chance of getting the prosecutor to budge on the offer. The judge’s intensity cuts both ways. Turned out the prosecutor and I were both right. She dropped a huge amount of time off the plea, and my client ended up pleading guilty.

It would have been a tough case to defend. That’s putting it lightly. Entrapment wouldn’t work because we’d have to show the client wasn’t predisposed to commit the offense; he’d pled guilty to the same thing twice before. Brainstorming, I explained that to the client and he looked at me, exclaiming “but people change!” He smiled to let me know he was making light of the situation. Like I said, I really like the guy. Unfortunately, the videos were crystal clear. The authorities were thorough in putting together their case.

Mitigation wasn’t easy either. Explaining to a judge how affable your client is won’t exactly get him a super-mitigated sentence, even if it’s true. Talking with him about mitigation, he made one of the funniest little speeches I’ve ever heard:

It’s crack, man! It ain’t meth. Everyone loves meth these days. You know how embarrassing it is to be sellin’ crack? You can’t give away that shit no more! Sure, it’s a bad, bad drug, but it ain’t like no one’s gettin’ no blowjobs for crack. It ain’t 1984. It’s only undercover officers and busted old crack ho’s buyin’ it. It’s a retro drug.

I doubt that would’ve been effective mitigation at sentencing. He has a genuineness about him that makes his humor both heartfelt and tragic, but I think that would be lost on all but the rarest of judicial officers.

As a result of the plea he entered at the settlement conference, my client is now serving over a decade in prison. Meanwhile, I toss and turn trying to sleep at night. I am depressed about the outcome. Even at happy hour yesterday with a bunch of other criminal defense lawyers, I couldn’t get over the case and enjoy myself. Other attorneys told me it was a great offer given his exposure and the facts of the case. It’s supposedly far less time than was offered to other defendants swept up in the same series of DEA undercover operations. Still, I’m upset.

A decade in a cage for drugs. Think about it. My client was a high school football star. He went to college. His son will be in high school when he gets out. His poor child will have spent his formative years without a dad.

The judge’s speech at settlement includes a part about how no defendant ever sees himself being at the defense table when he’s a kid. I got choked up thinking about my client’s life. I remembered mitigation I read in his oldest cases. Back then, his lawyers wrote how he had a bright future ahead of him, how someday he would be a good father, a coach, and maybe a teacher. It is unclear whether his future can ever hold those things. I hope more than anything that it does.

The judge’s speech also focuses heavily on the risk of trial. When he asked my client if he’d ever been to trial, my client shook his head. Suddenly, I felt terrible. Six felonies and not a single trial? My client had spent most of his adult life behind bars, and he’s not once gone down swinging? I wanted to stand up and pound the table. I wanted to reject all offers and continue fighting the state for him, all the way to the bitter end. Now, I am ashamed I felt that way. He would have ended up serving a life sentence for my arrogance.

I wrote in my last post that you can only really complain about the outcome of something if you didn’t participate in the flawed system that let it happen. I now think I was wrong on that point, but that’s not my reason for bringing it up. A regular commenter on this blog wrote in response that, by that logic, “because your posts show that you think the criminal justice system, in which you are a participant, is flawed, you cannot complain about the system.” Is he right? Is that why my client’s sentence upsets me so much?

I set the case for settlement confident I could get a better offer that way, but also knowing my client was likely to plead under pressure from the judge in the event we got a great offer. I participated in a system that’s making a little boy grow up without a dad. A bright, funny, talented man is going back to prison. His dreams are on a ten-year hiatus. This is the drug war, and I’m a part of it. I minimized its damage as to one person, but he’s sitting in a cage because an undercover drug cop called him up and offered him $60.00 for a tiny little bag full of C17H21NO4. I’m disgusted with myself for participating. Worst of all, I worry I may not even have the right to complain.

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7 Responses to "A Victim of the Drug War"

  1. Dianne Leiran says:

    I am a 71 yr old mother raising my son’s 6 yr old boy because my son was sentenced to 28 yrs for non-violent crimes related to using drugs because of history. He attended U of A for 3 yrs after serving in the Marines, bi-lingual, personable man, who had a public defender. Is there such a thing as some good lawyer willing to do a pro bono to help with getting a reduced sentence. I pray for relief for my grandson and for my son. All and any suggestions would be appreciated.

  2. Cody Weagant says:

    I have a very EASY time feeling sorry for your client. The only way to repeal the ridiculous satutory sentencing schemes is to vote. You have nothing to be ashamed of, you walked avulnerable person through a lions’ den and didn’t let him get hung. thay’s all we can do when the facts are against us.

  3. eric brown says:

    Writing this on a phone, and on a plane. Disclaimer.

    Touching post. You arent culpable. You cut his potential sentence by twenty years.

    Participating in the system doesnt mean you accept its values. Progressive movements need allies both inside and outside of flawed systems. The most respected opinions among those in opposition to the drug war, to me, are law enforcement officers and those involved in the justice system. Noone knows the stories, hypocrasies, and ineffectiveness of our approach to addiction better.

    And in the end that is what we are combatting: cold hard addiction, with behavioural or chemical roots that need to be treated.

  4. Chuchundra says:

    I don’t mean to sound heartless, but I have a hard time feeling sorry for this guy. I’m opposed to the drug war in all its forms, but until we repeal this particular prohibition, the law is the law and he willfully broke that law again and again and again, even after being arrested and serving time in prison on multiple occasions.

    Let’s face it, this guy is a crack addict. He may be an engaging, honest and amusing crack addict, but he’s still a crack addict. I feel sorry for the son who will grow up without a father, but let’s not lose sight of the fact that it’s the father’s decisions that caused this.

  5. Jeff Gamso says:

    I do a lot of death penalty work. And I’m an active death penalty abolitionist. I used to think that I’d have to give up working capital cases sometime because I was just enabling the system. After all, the capitally accused have a constitutional right to counsel, and if nobody would defend them, the system would collapse. Except, of course, (1) there will always be someone who’ll defend them, doing a piss-poor job along the way and sending more people to their death, and (2) if it were to happen that no lawyer could be found, they’d just revise the rules to either force attorneys to take the cases or to allow capital prosecutions without a right to counsel. Either way, stepping out of the system might make me feel cleaner in some sense, but it would also just add to the larger problem.

    None of us individually, and frankly even collectively, can fix the criminal justice system. What we can do is work to ensure that in this or that particular case it does less harm than it otherwise might. Along the way, we can maybe stem a bit the tides making it worse, and here and there even engage in a bit of successful pushback. It may not seem like much, but it’s actually rather a lot.

  6. Andrew (the other one) says:

    Now you’re thinking along the lines of where I’ve been ever since APDA. Learning that the PD has a system of pre-lim attorneys, trial attorneys, appellate attorneys, etc. drove home the point that criminal defense is just as much an enabler of the prison-industrial complex as the police and prosecutors are. Would the system still be imprisoning people if they didn’t have attorneys? Of course, but that doesn’t make one’s participation in the system any easier to swallow. Even if you’re securing better outcomes for particular clients in light of the absurd laws they are being subjected to, you are still helping the system to operate.

    It’s a thought I don’t know how to address. I’ve been bothered by it for several months and I see no solution. Well, that’s not true. I see one solution: walking away. True, the system will go on crushing people, but that doesn’t mean I need to be a part of it.

    Today, though, I’m still here.

  7. Andrew Becke says:

    Maybe your best post ever. Bravo.

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