The Massachusetts Criminal Justice System: What The Emperor Would Say About It

The Emperor’s
Summer House

I told how Norman and Roger got attorneys appointed for them after their argument in a parking lot. Why it happened is both a legal matter and one that involves the utilization of court resource.

The law is that anyone who is in danger of going to jail is entitled to a free lawyer. In reality neither man was ever in danger of going to jail so why did each get a free lawyer. The statute making assault and battery a crime has penalties that could send a person to jail (house of corrections) or even prison (with aggravating elements) upon conviction. So the potential is there for Roger to go to jail.  Even though the disturbing the peace charge for Norman who has no prior record only called for a fine, often to keep things moving on the court will appoint a lawyer. Here if Norman was later charged with A&B or A&B with a dangerous weapon exist he’d then get a court appointed lawyer.

So even though there is no chance either man will go to jail, if the punishment for the crime is such that jail may be imposed, then he is entitled to a lawyer and if he cannot afford one then he gets a free one.

Probation officers are supposed to make the decision on the person’s finances. They have hardly any time to do this being under pressure from the judges who are likewise pressured to move the cases. So they rely on a person’s answers without any independent verification. Few with a chance to get a free lawyer will want to spend money on one.

As you may expect there are thousands upon thousands of cases like that of Norman and Roger where there is no chance the person will be incarcerated yet the person will still get a free lawyer.  One of the major expenses in our court system and the cause of much unnecessary work is the provision of free lawyers for people who face only the theoretical potential of being sent to jail but in reality no chance at all.

The lawyers once appointed often spend much time investigating the case and doing legal research on the issues. They sometimes try to bring additional charges against the persons who brought charges against their clients. They are duty bound to do a thorough job in preparing and defending their client. They are paid by the hour so the more time they spend on preparation a the higher the cost to the people. It’s not the lawyer’s job to step back and say all this work is unnecessary but rather to prepare to defend his client.

You have to ask whether there aren’t better ways to handle these cases. In one of my favorite movies, Amadeus, Emperor Joseph II tells Mozart after listening to one of his early operas that it is an ingenious and a quality work but it has “too many notes.”

Emperor Joseph II looking at our criminal justice system would say there are too many crimes. He’d suggest that we could do away with 75% or more of them and still function quite well.

What could we do with them? Simply decriminalize some. At one time being a common drunkard was a crime and arrests of drunks was a nightly event in every police district in a city. Now that is no longer a crime. There are many, many more minor crimes that can be struck from the books and no one would miss them.

We could come up with a category of acts that are not quite crimes. We could call them mal actions. These would be acts that normally would have been crimes but would have no prison term attached to them. This does away with the potential of a person going to jail. It eliminates the chance one will get a criminal record over a minor act. Lawyers won’t have to become involved.  Probation officers need not bother with facade interviews. Judges can attend to more important matters.

An example of a mal action would be the disturbing the peace charge against Norman and Roger. It provides that for a first offense the maximum sentence is $150.  Why have it a crime with all the rigmarole involved if the punishment is so insignificant. You could add to that simple assault and battery which is punishable by two and a half years in the house of corrections yet most of these cases result in dismissals especially for people with no record of prior offenses. There are hundreds upon hundreds of these type crimes that can be classified as mal actions.

The fewer the crimes the more the courts can concentrate their resources on matters that deserve serious attention. Tomorrow I’ll suggest how to deal with mal actions.


4 thoughts on “The Massachusetts Criminal Justice System: What The Emperor Would Say About It

  1. The Cahill case is another good example of a waste of the court’s resources. I don’t care for the guy, but it is a good result. He might be really stupid and a big jerk, but he isn’t a criminal. I am impressed with the jury in that case. That is why I am not too sure about the Bulger case being open and shut, an opinion I have expressed here earlier. I’d not underestimate a jury, especially if the immunity question is put to them.

    1. Pam:
      Agree with you about Cahill. Why he thought he could be elected governor as an independent shows he didn’t know when he was well off. You are right it is not criminal to be stupid or not to count your blessings. His jury was impressive. The judge did not make the evidence clear to them, or the prosecutors made lousy arguments, or defense lawyers messed with their minds. Why it was considering unindicted people seems strange. But it did work hard at what it was supposed to do. If Whitey gets a jury like that which is not poisoned they he too may have a chance but with him it’s a very long shot after the jury sees the pictures of all the dead victims. Carney thinks like you. He wants to get to a jury. It is really his only chance if he can use the immunity evidence.

  2. Hi Matt

    Although I generally agree, I would point out that even the unlikelyhood of incarceration doesn’t end the defendant’s problems or important interests. A district court ADA may ask for a CWOF or even a guilty finding with short probation. Either course could result in a guilty finding immediately, or at some later time. An A&B/DW is a felony. A felony record has serious consequences, incarceration or not. The ADA has no real duty to the defendant’s long term interests and is more likely to put forth the policy dictated by DA World HQRTS.

    Also, recent scrutiny of the Probation Dept. has brought about changes in the past loose indigent determination that you describe. Recently, I encountered a defendant required to retain private counsel where family resources were included in a determination of appointed counsel eligibility.


    1. Lee:
      Good to hear from you. I agree totally with what you say in the first paragraph. What I’m suggesting is that we have to rethink the ways we are doing things. I believe there are lots of ways we can bring the system up to the present time to make it better but the judges, DAs, defense attorneys and court personnel do not have the desire or interest to change things.
      I recognize to do so will involve bucking a lot of countervailing forces but sometimes that has to be done. I don’t think that my system is the best or the only one that can be employed but it would be a starting point for people to talk about. I’m sure you could do a lot with the way things were done by you and have seen many things that could have been done better. You know as well as I do that people hate change.
      I think in the police aspects of our criminal justice system good advances are being made. I don’t address them because I don’t know enough about them. I’ve heard a passing license place can be scanned instantly to see if is valid, or a shot fired outside can be located within three feet of its location. These are things developed by the military but passed on through police forces. Those are good developments but the work that follows the actions of the police should be streamlined as well.
      I’m glad to hear there are changes in the system of appointing counsel for defendants. In my time people with good jobs and hefty bank accounts were getting them especially when the charges were of a more serious nature. There was one attorney I knew who had a little racket going where he’d show up to represent a person as a private counsel. Then once the case got a little bit into the discovery phrase he’d tell the court his client could not afford him anymore and he’d need court appointed counsel. The judge knowing to change horses at that time would set the case back so he’d appoint that lawyer to carry on but he was then being paid by the state. Whether his client could afford to keep him or not was never really investigated.

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