Arbitrary Justice is No Justice

speedy trial PABeing a former prosecutor has given me a wider perspective on our legal system than the average person and even attorneys with no experience as a prosecutor. I can often see both sides of an argument and the validity of the opposing positions. It very often is an asset to me as a defense attorney, allowing me to avoid a truly adversarial relationship with prosecutors in favor of a more nuanced and even sympathetic approach, which is a big help in situations requiring negotiations, such as sentencing, etc.

Guidelines that restrict the ability of prosecutors, judges and defense attorneys to negotiate, and use some common sense and even compassion in making determinations, are at best a ‘feel-good’ expedience to assuage the frustration of the public and at worst, a miscarriage of justice with life-long consequences.

These policies have led to a level of incarceration that even communist authoritarian governments like China, with 4 times our population, cannot rival.

Case in point: The United States has 5% of the world’s population and 25% of the world’s prisoners. It seems we love locking ourselves in cages.

Although I fully understand the desire to keep violent criminals off the street, I still believe that the rights of the individual must supersede the desire to appease fearful citizens. Though legitimate, fear of an occurrence should not be treated the same under the law as an actual event.

The desire for a deterrent effect within the law through taking a hard line on punishment is simply an unrealistic and ineffective approach that costs taxpayers far more than it’s relative value.  In fact, if it worked as they intended when passing these laws and guidelines, our prison population wouldn’t be rising dramatically.

I believe lengthy prison sentences should be primarily for violent crimes and repeat violent offenders, not non-violent crimes. I have seen federal sentences go from 24 months to 188 months because of two minor misdemeanor convictions (career offender) and that’s, forgive my language, just plain f*cked up.

I would immediately repeal career offender and armed career criminal sentencing guidelines.

I would only permit federal prosecutors to file a Rule 851 notice on individuals with significant violent felony convictions.

Arbitrary justice is no justice at all.

President Obama has repeatedly talked about reviewing and repealing these draconian laws and sentencing guidelines. Mr. President, it is time to act and follow up with meaningful reforms.

It’s not enough to state a position without the willingness to follow through on your convictions.

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