Minority Issues, Racism

Why I Failed As A Prosecutor

Sometimes justice is a tricky concept.

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I moved to the United States with my family in 1988. I was ten years old. None of us spoke any English. Through hard work, perseverance, luck and a lot of grace, my family managed to thrive. I remember growing up, I deeply felt and knew that the world was unjust.

Fast forward to 2005, I achieved my life long dream of becoming an Assistant State Attorney (ASA). I could hardly contain my excitement, practically giddy with joy as I carried two bankers’ boxes full of files into the courtroom. As is always the case, I started in the misdemeanor court. It was arraignment morning and the courtroom was full of defendants, and defense attorneys.

I deeply believed that working as an ASA was a way to cure the injustices of the world. To punish the offender. To restore the victims. In short, put “bad guys” in jail.

The judge entered the courtroom, we all stood and he started the docket. First order of business — deal with the Driving Without a Valid License cases. He called the interpreter and asked her to say in Spanish “if you’ve been arrested for driving without a license, go to the jury box.” A few dozen, mostly Mexican men, along with other Spanish-speaking defendants, got up and slowly moved into the jury box. He then said in Spanish (which even I could understand):

First time: fine.

Second time: 10 days in jail.

Third time: 364 days in jail.

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He asked the interpreter to further explain the punishment. He then asked those who had been pulled over for the first time to stand and one by one, he asked if they wanted to plead guilty or not guilty. Overwhelming majority pled guilty on the spot.

Next were the second-time offenders. Once again, the majority pled guilty and the bailiff escorted them out of the courtroom. Last came the third-time offenders. Those who would spend almost one full year in jail for driving without a valid license, which one could not get without the proper paperwork.

Of course, those who were pulled over for simply allowing their license to expire were told to renew the license and were given another date.

I share this story in light of the recent Joint Statement on Eliminating Bias In The Criminal Justice System issued by the ABA and NAACP Legal Defense and Educational Fund, Inc.

Here are some of the highlights from the report:

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The growing skepticism about the integrity of the criminal justice system is driven by real and perceived evidence of racial bias among some representatives of that system.

We need fewer criminal laws, and fewer circumstances in which police, prosecutors and judges are called upon to deal with social, as opposed to criminal, issues.

Police departments should be encouraged to make and keep reports on the racial identities of individuals stopped and frisked, arrested, ticketed or warned for automobile and other infractions.

Prosecutors and police should seek assistance from organizations with expertise in conducting objective analyses to identify and localize unexplained racial disparities.

Startling are the statistical data:

With approximately 5 percent of the world’s population, the United States has approximately 25 percent of the world’s jail and prison population. Some two-thirds of those incarcerated are persons of color. While crime rates may vary by neighborhood and class, it is difficult to believe that racial disparities in arrest, prosecution, conviction and incarceration rates are unaffected by attitudes and biases regarding race.

This brings me back to the title of this post — why I failed as a prosecutor. While technically, the undocumented workers did break the law by driving without a driver’s license, I did nothing to recognize what the report describes as the “racial bias” and “discrimination” occurring right in front of my face. The truth of the matter is, these undocumented workers were being pulled over simply because of their race. The cops regularly pulled over people of Hispanic descent, driving in certain areas of Hillsborough County.

Prosecutors, judges and defense counsel must pay more attention to the collateral consequences of convictions. In many jurisdictions, after an individual is convicted of an offense and completes his or her sentence (by serving time, paying a fine or completing probation or parole), the individual nevertheless faces a life sentence of disqualification and deprivation of educational, employment, housing and other opportunities.

When this judge sentenced the defendants to jail, ironically, the conviction for driving without a valid license can be the very thing that can ultimately prohibit the defendants from gaining work visas or citizenships.

In writing this article, I looked up the word “justice” in the dictionary. The Black’s Law Dictionary defines it as “The constant and perpetual disposition to render every man his due.”

Which makes me question — what is the proper due for driving without a valid license? What is just in this circumstance?

I recall having recurring nightmares about going to jail while I worked as an ASA. I could not look at the undocumented workers and not see my mom or my dad in the jury box, pleading guilty.

Eventually, I was rotated out of this judge’s courtroom and assigned to a different judge, who would sentence the defendants to community service. Is that justice? If you’re assigned to Judge A, you spend a year in jail and if you’re assigned to Judge B, you get community service.

I recognize now how naive I was in thinking I knew or understood the meaning of justice. I am grateful that the ABA has taken up this important question of looking at how we administer “justice” and punishment, in relation to racial bias and discrimination. Perhaps this will be a beginning to a comprehensive reform for our criminal justice system.

Jeena Cho is co-founder of JC Law Group PC, a bankruptcy law firm in San Francisco, CA. She is also the author of the upcoming American Bar Association book, The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law Practice Using Meditation (affiliate link), as well as How to Manage Your Law Office with LexisNexis. She offers training programs on using mindfulness and meditation to reduce stress while increasing focus and productivity. She’s the co-host of the Resilient Lawyer podcast. You can reach her at smile@theanxiouslawyer.com or on Twitter at @jeena_cho.

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