The Making Of A Felon: How Poverty And Race Are Putting People In Prison
If you're white and wealthy, you can avoid being branded as a felon for the rest of your life.
Nobody is born a felon. But once saddled with that title, you’ll wear the equivalent of the scarlet letter the rest of your life.
That’s why I fought so hard recently for a young client who I hoped would avoid this fate. In the end, he lost. It was due in part to some bad decisions he’d made, but also due to the insensitivity and unreasonableness of the district attorney(s) handling the case. The case should never have been indicted, but it was because my client was poor.
Many district attorneys’ offices — in particular, the Manhattan D.A.’s office under Cy Vance — use considerations other than what’s fair or just to determine who to indict. Chief among these is poverty. It’s not an intentional political choice to incarcerate the poor, but more a logistical decision based on how the law works concerning bail.
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When a person is arrested, he goes before a judge and bail is set. Bail is meant to assure the person returns to court. Factors considered are the person’s criminal history, whether he failed to return to court in the past, the nature and severity of the accusation, and whether he has community ties. If the accused cannot make bail, he is kept in jail until the case is concluded, either through plea, trial, or dismissal. That can take years.
In New York, to help guarantee people are not kept in jail indefinitely, a governing statute holds that if the person is not indicted within 144 hours after arrest (six days), he must be released on his own recognizance. This law was meant to help poor defendants be released from jail when the facts against them were weak. But instead, it’s been turned into a tool to indict poor people quickly just to be able to keep them in jail.
If a defendant doesn’t have the money to make bail, prosecutors will rush like heck to indict so he won’t be released at the end of business on the sixth day. Often that means that cases that shouldn’t have been indicted are, just to avoid letting the guy get out. It’s easy to indict even weak cases. Remember, as former New York Judge Sal Wachtler reportedly said, “You can indict even a ham sandwich.”
My client’s name was Jeffrey (not his real name). He and his cousin went into his uncle’s apartment through a window and stole several PlayStations worth no more than a couple hundred dollars. The uncle did not want the case indicted. He was angry, but it wasn’t worth putting his nephew in jail over it. Jeffrey’s mom offered to pay back the cost of the property taken. The case should have ended up as a misdemeanor with a stern warning to both Jeffrey and his cousin to stay out of trouble for a year, do community service, and make restitution. Instead, both ended up going to jail for 3-and-1/2 years.
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Both were young black men. Both are now predicate felons. That means for the rest of their lives, they will be saddled with the stigma of being felons, keeping them from getting certain licenses, jobs, apartments, government benefits, and even voting (in some states.) All over some PlayStations that the owner didn’t even want prosecuted.
The tragedy was compounded after the prosecutor, in what she considered was a “great deal,” permitted Jeffrey to plea to a C-violent felony with the promise that he could re-plead to a D-violent felony if he attended certain programs, got his GED, and stayed out of trouble for a year.
This is a lot to saddle on a 20-year-old. Jeffrey suffered bi-polar mental illness. His mom was in and out of work and expected him to watch and cook for his three younger sisters. She battled her own war with alcoholism and mental illness. They barely had money to live.
So while in the abstract, the plea deal may have seemed fair, in reality, successfully abiding by the terms of the “great deal” was near impossible for Jeffrey. And, in fact, he failed the test.
Jeffrey got re-arrested for throwing something at his mom (she called the police), and in spite of the fact that he’d done well for nine months in a program and had found work, none of that counted because of the new arrest.
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In a meeting with the young prosecutor and her supervisor at the beginning of the case, the supervisor had called the burglary of the uncle’s apartment a “horrid” crime. I wondered what planet she lived on.
When it came time for Jeffrey to be sentenced to 3-and-1/2 years, the judge could do no better. It was a mandatory sentence because he had violated the terms of the plea contract and every C-violent felon gets a minimum 3-and-1/2-year sentence, no matter how stupid the crime.
His uncle wrote a long letter on Jeffrey’s behalf imploring the prosecutor to forgive him and not sentence him to state prison. The crime was just too insignificant. It had been his son, whose PlayStation was also stolen, who’d called police. The prosecutor refused to speak to the uncle or read the letter. “It won’t make a difference,” she said. “He had his chance.” When I called her intemperate, she stormed out of the room.
Jeffrey is now upstate. It’s certain that at age 22, his stay in prison will not make him a better person or a more productive member of society.
The uncle wrote in his letter (that I read to the court) that had Jeffrey been a young white man, he would not have ended up with a 3-and-1/2-year jail sentence over stolen PlayStations. The judge took offense at this and stated, “Race has nothing to do with it.”
Maybe it doesn’t in the abstract. But what the sentence has to do with is poverty. Had Jeffrey had the money to make bail, experience tells me the case would not have been indicted and a far more just outcome for both Jeffrey and society would have been reached.
Had Jeffrey been white or wealthy, he wouldn’t now be spending three-plus years in state prison and branded a violent felon the rest of his life.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.