A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Monday, January 25, 2010

Why Nothing Will Ever Change In Criminal Justice

Two stories hit the internet over the last week or so. One was about the FBI breaking wiretapping laws. The other was that 500,000 people are currently incarcerated awaiting trial at an annual cost to taxpayers of 9 billion dollars.


That was the collective response of the nation.

Sure, we've got Haiti on our minds, the Super Bowl's coming up, American Idol is starting a new season, the iPhone may be available to other carriers besides at&t soon, and the two stories I mentioned dont play well on "Law & Order," or with the Law & Order crowd.

But these two stories put the nail in the coffin on the issue of whether anything will ever change in the criminal justice system.

Nothing ever will, change.

We have a love/hate relationship with crime. We love watching white trash after white trash being arrested on Cops. We love watching everyone get convicted on the 12 different Law & Orders. We are numb to the fact that local news is nothing more than a few top stories of crime and punishment, and then something about a dog, or cute kid, and don't even realize that we are addicted to something we hate - crime.

I know, this is about the time someone says "but if there was no crime, you wouldn't have a job."

Yes, I would. I'd find something else to do. We all would. Cops, prosecutors, judges, we'd all do something else.

But we have a society that is spending money we don't have to make us all feel "safe."

For every lawyer, judge, civic activist, or casual courthouse observer that laments the explosion of criminal statutes, explosion of the number of people in jail, and lack of priority in the system - there's a group of police officers and angry mothers that demand we stay the course.

Leadership in state legislatures, where most of the thoughtless legislation on criminal justice is created, is basically non-existant. The goal of a legislator is singular - to remain a legislator. No one gets elected, or stays elected, by touting significant change in the criminal justice system - unless its more laws, more jails, and more people in those jails.

California's jails are at capacity at 100,000 inmates. They currently have 170,000. No one cares. Eventually a federal judge will pen an order requiring the jails to release inmates. Until then, California will do nothing. They can't. It would take thought, courage, and leadership. That doesn't exist anymore.

Whenever numbers are thrown out regarding the amount of non-violent drug offenders in our jails, there's another group calling those numbers "lies." Legislators cower in committe rooms when 20 uniformed police officers show up and sit in the gallery. They are there for one reason - to let the elected officials know that if they do anything - anything that disturbs the apple cart - they will be targeted as "soft on crime," and they may lose their seat.

We don't care that the FBI was or is illegally wiretapping phone conversations. From Joe Six Pack and his wife, to the typical suburban family who "have nothing to hide," wiretapping conversations is OK. These are the same people who "don't care if cops want to search my house." These are also the same people who want a cop fired for giving them a traffic ticket.

As for all the people awaiting trial at a cost of 9 billion a year - that's too big a number to think about. The average family doesn't have 9 billion dollars, and they don't think they are paying towards that number. They just know that the damn garbage fee keeps rising a few bucks a year.

As long as people continue to go to jail, and stay there, that's just fine with everyone. Disagree? Walk around any judicial fundraiser where there's non-lawyers and others outside the system and you'll hear the clamoring of "you gonna keep those criminals locked up - right?" That's what people think judges do.

So they do.

We've lost any sense of how to deal with the criminal justice system. In Florida last year the prosecutors asked that no new criminal statutes be enacted.

They heard crickets.

One after the other they came - more laws, more increased sentences, no thought at all.

And we just keep going.

We have determined that there is no solution. We deal with the line of innocent people released from prison with shrugged shoulders. Then we watch our legislators fight to keep the exonerated from receiving a dime.

We give cops power, and when that power is abused, we give them more.

We hear that certain laws arent working, so we tinker with those non-working laws to make them more impossible to deal with.

Our prisons have too many people that don't belong there, so we put more people there.

And so it goes....

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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  1. What about the discretion afforded to prosecutors and judges? For example, if my computer becomes infected with a virus and is used to d/l and share child pornography--without my knowledge or intent--do you think any prosecutor is going to have an ounce of common sense and decide not to pursue changes? Hell, no! That's resume fodder: "I put a (kiddie) smut peddler in prison!" Likewise, I don't expect any judge to dismiss charges once they are brought for the same reason.

    Legislators may enact stupid laws, but that should not release officers of the court from displaying a small measure of reason: Did this person INTEND to commit a criminal offence?

    A small dose of sanity would go a long way toward relieving our overcrowded and overpriced prison system.

  2. Anonymous1:51 AM

    I don't see it as harshly as you do. In my local jurisdiction you can pretty readily plea bargain a murder down to a 100$ muffler violation. That is an exaggeration, of course, but not by much. And we aren't talking about shaky cases here either. I have turned in cases with video footage of the crime itself ("smile at the security camera while you swipe the stolen credit card in the scanner"), sworn written confessions, the whole nine yards, and seen them pled down to peanuts. I can't say I blame the prosecutor for that. Every day they get a boatload of cases to dispose of, that day if possible. But harsh punishment for the accused it isn't, at least not where I work.