Following up on my sentence primer, Mark Bennett (of the Texas Bennetts) wrote about the federal counterpart, 18 U.S.C. 3552(a)(2).  He tossed in this little tidbit which, if you close your eyes, you can hear him saying with sarcasm dripping off that Texas drawl,

so nobody ever goes to prison in New York for any longer than is necessary to rehabilitate him, to make sure he doesn’t recidivate [is that a word?], and to deter others. Isn’t that nice?
 
Ah, if it were only so.  But of course, that’s not reality.  The imposition of harsh punishment is just as prevalent in New York as elsewhere.  Why?  Because the law is constructed with a million nice theories, but plays out with a very different reality.  And to put it in context, under the federal criteria “the sentence should be “sufficient, but not greater than necessary” to satisfy those purposes. Id. §3553(a).”  Tell that to anyone sentenced under the guidelines.  It’s like a store that advertises “personal service,” but only sells “one size fits all.”

The point is that the law we live with isn’t the law we learned about in law school.  It is a rough version, more often falling into Gideon’s “going rate” approach than one tailored to suit the reasons that justify its existence. So what do we, as advocates, do about it?

One of the traps that young lawyers fall into almost immediately is trying to become part of the gang.  We all want to fit in, especially when we are just starting out and think we stick out like a sore thumb.  So we emulate those around us who fit in.  We assume their jargon and approach.  All the little things we are never taught about in school we learn from watching more experienced lawyers.  We want judges to accept us, maybe even like us and say a kind word to us, so we assimilate.  It makes us feel like we’re real lawyers, and not kid pretenders.

While this is all understandable from a human perspective, since everyone wants to be one of the boys (or girls), it starts young lawyers down a path from which few escape.  We adopt that “one size fits all” mentality.  We accept the “going rate” and start formulating our own ideas of right and wrong, good and bad, according to what is presented as the norm. 

Criminal defense lawyers begin to learn some bad habits that many never shed.  In New York, arraignments are performed with a mantra that uses Penal Law numbers and phrases that are totally incomprehensible to clients.  Ask a client what happened after arraignment, and he will almost always be totally clueless.  How is a client to make decisions about his life when he’s denied the ability to understand what his lawyer is doing?  But he’s not denied by a mean judge or an overbearing prosecutor.  He’s denied by his own lawyer.

Motion practice is one of the most potent weapons in the defense arsenal.  But so many lawyers grind out pro forma motions (occasionally forgetting to change the name in the body from some earlier incarnation) that they are shooting blanks.  One of the favorite requests amongst members of the New York State criminal bar association is for a generic motion.  Not only does this reflect the “one size fits all” mentality that pervades the criminal defense bar, but the lack of personal effort and responsibility, both for their client and themselves.  Nothing personal, guys, but I wouldn’t rely on anyone else’s motion for anything.  Ever.  I do my own, thank you, and every one is sui generis.

The upshot of this all too common practice is that judges routinely deal with motions like a joke.  You’ve been given a month to prepare them, and then the judge will read them and rule from the bench in 30 seconds.  There’s no expectation of anything in there beyond the norm, and they are so inured to routine efforts that they can’t be bothered to give them an extra second of needless thought.  I find myself outraged when I see this happening, and I have frequently been heard to admonish a judge, “I spent 10 hours researching and preparing my motions, and I would appreciate your spending 10 minutes to read them before ruling.”

One of my running themes in this blawg is treating each defendant as an individual.  It’s a nice thought, but many who read this will respond, “that’s great when you’re not a public defender with a 250 defendant caseload.”  I concede this point readily.  There is no way that a person carrying such a ridiculously high caseload can provide the level of attention that each defendant deserves.  But what of those criminal defense lawyers who have the time, but not the will?  The PD does the best he or she can given the constraints under which they labor.  And I have seen them in pain for their inability to provide the level of representation they want.  This only serves to make those lawyers who fail to put in the effort though they have no excuse that much worse.

No, Mark.  New York is no utopia, for sentencing or anything else.  We’ve got some extraordinary lawyers here, but then you have some in Texas too.  But we’ve got the hacks who don’t care, or more accurately, have lost their way down a path of fitting in, the norm, the routine.  No one will ever chastise them for doing a yeoman’s job, as expectations are so low and the courts are just as guilty of dispensing quick and dirty justice to keep those cases moving along through the system.  They are all happy to be cogs in the wheels of justice, so long as no one looks too hard at what “justice” has become.

If I can accomplish anything by writing these posts, it would be to remind these lawyers of the passion they had in law school when they studied these wonderful theories about the law.  Perhaps now that they no longer feel the need to be just like everyone else, they can break away from the path of least resistance and go down the road less traveled.