Writing of Whitey and his trial naturally encompasses a broad swath of subjects: his relationships, his environment, his actions, how law enforcement agencies worked for or against him, the way our justice system works, and how others think of Whitey. I use Saturday to talk about some of these things more generally.
As a career prosecutor I’ve been instrumental in having people incarcerated, some through plea bargaining and others by recommendations I made after trial. For the most part, a plea bargain involves a defendant weighing the chances of acquittal, considering the penalty after conviction, and then trying to mitigate the punishment by pleading guilty when the odds of acquittal do not favor him. If the penalty does not vary as in a murder charge or other mandatory minimum cases the defendant will usually go to trial regardless of the odds. Otherwise, if the case looks like a loser he’ll try to ease his punishment.
In those cases the prosecutor suggests a couple of things: his recommendation after trial and his recommendation if the defendant pleads guilty. Defense counsel suggests what her client will accept.
They then have a discussion while considering, whether consciously or unconsciously, other factors such as legal strictures upon the judge due to sentencing guidelines, the judge herself, what usually happens in these cases, the attitude of the victims, a prosecutor’s analysis of the defendant and the strength of the evidence against him, this will differ from the defense attorney’s, the willingness of the lawyers to spend the time preparing for trial, and the lawyer’s attitude to trying a case among other things.
We called this bargaining. Bargaining is not really an American thing except perhaps in the case of automobiles where we make a feeble attempt at it. We’re used to fix price shopping in giant retail stores ponying up whatever is written on the tag. We’ve dealt with small store owners, small contractors, tradesmen, and others who have reacted with distaste, as if personally insulted, if we even hint of offering a lesser price than that arbitrarily placed upon the value of the goods or services offered.
The scene in Casablanca where the Arab merchant continually lowers the price in an attempt to sell some fabrics to Rick and Ilsa is a hyperbolic example of bargaining. Yet bargaining is the way the economic system operates in many countries. It is the way of life of people who have done it for eons and have it in their blood to bargain both to earn a living and to enjoy the wits involved in it.
In a case where incarceration looms, the nitty gritty of the bargain is numbers. I’d say, “I’ll recommend 12 to 15.” Defense counsel would say, “he’ll take 5 to 7.” I’d explain why I couldn’t move off my figures, she’d tell me why I should. We’d sometimes come to a compromise and arrive at an agreed upon plea. Other times we’d let the judge decide the numbers.
Numbers we called them. Those numbers represented years – years out of a person’s life. We’d talk about them as if they were pineapples. Already we had begun to dedignify the person – making him an “other”. We no longer treat the person like we would treat another human being. The person realizes he is no longer like most other human beings, he has lost his freedom of action. He becomes subject to the whims and wiles of others.
Whitey sits in his prison clothes in a cell by himself for most of the day. He is allowed on certain days to have visits from certain family and others. Most times he can only talk to a guard. We have no problem with this being done to him. Isn’t it the way things should be done?