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.