The Tragedy of Orange Is the New Black

The hit show lays bare a dangerous flaw in the criminal justice system.

A teaser clip for the next season of Orange is the New Black has been released. I think it looks awesome.

But in today’s column, I’d like to talk about part of the first season.

For those of you who don’t watch, here’s what I’m talking about.

When she’s in her early twenties, Piper Chapman, the show’s protagonist, does some work helping an international drug dealer because she’s in the midst of a relationship with an older woman named Alex Vause. The relationship is kind of twisted and intense in the way that many relationships among folks in their twenties are. These kinds of relationships are, perhaps, a third of what’s good about being in your twenties and half of what’s bad. Anyway, in the middle of their time together, Alex flies around the world with Piper being fabulous as Alex serves as a courier for the drug dealer.

One time (or close to one time), at Alex’s request, Piper picks up a suitcase that she knows contains drugs and walks out of an airport with it.

Later, Piper and Alex break up, and life moves on. Piper finishes college, gets a job in P.R., gets engaged to a guy (who I think is kind of a needy loser, but I won’t dwell of that because glass houses, etc.) and has her life pretty close to together.

This “life coming together” thing, however, happens within the statute of limitations.

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The government goes after the drug kingpin. Their investigation works its way to Alex. Alex flips on Piper and Piper is prosecuted.

For me, this raises the question, why? Why is Piper prosecuted and sent to prison?

Because the government would win if they took it to trial, sure, I get that. And she broke the law.

But not every violation of the law lands someone in prison. And there really ought to be a reasoned discussion of whether to send someone to prison at a cost to the government of something like $30,000 a year, not to mention the massive social, professional, and emotional costs to the person going to prison. That conversation should be more than “she broke the law” + “we have been investigating this” + “we can win at trial.”

At some point, there should have been a meaningful opportunity for Piper’s defense lawyer — or any defense lawyer — to weigh in on why prosecution is not a good idea in a case. And by “meaningful opportunity” I mean one before the government has decided to go forward with a case where the government actually listens.

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Piper had, basically, demonstrated that she wasn’t going to commit any further criminal conduct. Her life was radically different. She was engaged and living in Brooklyn. Did she need to be rehabilitated? Did she need to be imprisoned?

I’ve seen people who violated the law not be prosecuted for lots of reasons — the AUSA investigating the case left to go to private practice, or a cooler job; the agent on the case retired or transferred; some new kind of case became a new prosecutorial priority and all the resources went to that new kind of crime (a lot of this happened after 9/11 or, again, after Enron); an AUSA let a file sit too long and then wearied of doing anything with it. The list goes on. And I’m happy that it does, but none of these are reasons — they’re explanations. There’s no reasoned discussion of whether the government should abandon a case or go forward with one.

It’s that each of these is unthinking. And, equally unthinking is the decision to prosecute Piper.

What’s most maddening is that AUSAs don’t actually think that exercising prosecutorial discretion around whether a person should go to prison is their job. I’ve had an AUSA tell me that his job was to investigate the facts and see if the law was broken. If there’s something about the person who’s been accused that might be a reason that a prosecution is kind of a bad idea, that’s for defense counsel to develop and present to a judge if the person is convicted. That is exactly the kind of robotic approach to the prosecutorial function that makes Vogons look like masters of reasoned discretion.

This isn’t just a matter of practice — it’s DOJ policy. The Department’s stance in the U.S. Attorney’s Manual is that “[t]he attorney for the government should commence or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.”

The most glaring tragedy of Orange Is the New Black isn’t that Vee was killed (belated spoiler alert) or the many indignities visited on the women in the show. Rather, it’s that Piper was thrown in prison reflexively and pointlessly because the Department of Justice has virtually no interest in justice except in its cruelest sense.

Unless Piper’s prosecution was a long play to create a really good television show. If so, then bravo, DOJ. And Season Three will likely be awesome, particularly since Jason Biggs isn’t coming back.


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.