Ken’s Comments:

What do I mean when I say that the “war on drugs” has clogged the courts to the point of serious dysfunction, causing incalculable injustice?  When I practiced law (1973-1983), the system worked well; justice/fairness almost always was the result in any given case. Not any more! As I have seen the “war on drugs”  escalate, I have seen our courts devolve into chaos!  

 

As a prosecutor, I was in trial – not “plea deals” – jury trials, an average of 4 out of every 5 days! In private practice, I was in court at least two days every week.  Today, 95% to 98% of felony cases end in a guilty plea (wham, bam, it is over in 20 minutes!); see my Letter to Editor below (no trial, to ascertain the truth). The defendant is asked questions by the judge (the “plea colloquy”)  … do you understand this, do you understand that … and “are you satisfied your attorney has done all he/she can for you?” … and the defendant says yes yes yes when in fact he/she probably doesn’t understand a damn thing because the lawyer never explained it! They also usually sign a form indicating that they understand these things (various rights).  And, if you try to withdraw your plea [which must be done within 7 to 10 days in many states – another thing nobody tells the defendant – the Court will point to that plea colloquy and the form and deny the Motion to Withdraw Plea … you are “toast”, with very, very, very rare exception! About one in 10,000 who try to undo a guilty plea succeed in doing so.

ALL courts are adversely affected in some way, and the results are the horror stories I hear every day … Magistrate Court, Family Court, even Court of Chancery, which handles no criminal cases!

Here in Delaware, every Superior Court Judge (our court of “general jurisdiction”, handling all felony criminal cases) has a docket case load of 400 to 500 (one had over 800!) civil cases every year, in addition to the hundreds of criminal cases each year.  That is an average of more than 2 or 3 cases, some quite complex, every single day. This is insane; there is no way even the best judge can give each case the time/consideration it needs!

 See also my video “Stacking Charges”! Because “truth in sentencing” laws in most states (enacted here in 19193) require that sentenced for more than one offense be consecutive – back to back – prosecutors charge multiple offenses. The pressure is ON to plead, because if you go to trial and lose, the sentence is terrifically (and unfairly) long!

 

RELATED: 6/1/13 Letter to Editor  –  Sentencing  in a Vacuum        – Rush to Sentence      

Have I mentioned that today’s criminal justice system is pretty much a train wreck? Of course, the main problem is the overwhelming overload caused by the completely ineffective “war on drugs”.  This “war”, waged for more than 40 years now, was lost long ago. Any illicit drug can be acquired readily, while arrests simply jam the courts to their current state of dysfunction.

One major adverse consequence of this is the present situation that most criminal defendants are sentenced immediately – at the time they plead guilty or are convicted. It’s “quick and easy”, and often a disaster. I suggest that the administration of justice should not be, and is not, “quick and easy”; it requires informed exercise of prudent and wise discretion. 

Today, there is no pre-sentence investigation or report in the vast majority of felony cases. Fewer than 10% involve a pre- sentence report. Only about 2% of all felony cases go to trial, a few are dropped (Nolle prossed by the Attorney General’s office), the balance of about 95% end with “plea deals”.  The defendant, in nearly every instance, is sentenced within minutes, with often truly tragic consequences. Not the least of these is wildly disparate sentences; one defendant with the same background as those being compared, may get probation, while the next, similarly situated – same offense – may get 10 to 15 years in prison. Such incomprehensible inequality undermines respect for the entire system. 

With no pre-sentence report, the judge often is sentencing in a vacuum, knowing little or nothing about the facts of the incident, the background and reputation of the defendant, or myriad other factors critical to a determination of a fair sentence. Does this make sense? No; it certainly makes “informed” decisions impossible.  All too often a defendant discovers, too late, that he receives a sentence far greater than expected and far greater than agreed to (the judge can impose any sentence up to the maximum, irrespective of what the parties have agreed). This happens not infrequently, and nothing can be done to correct many manifest injustices which result. 

While some of the public may be skeptical that widespread injustice results, every lawyer active in the criminal justice system knows the truth of what I write, for they have seen it, just as I have.  

The solution: of course, first and foremost, CHANGE policy on the “war on drugs”. See Drugfree.org.  Until we end our senseless “war on drugs” no remedy will restore justice to the system. Next, slow it down! Allocate resources for more pre-sentence investigations and reports. Finally, track the sentences actually given for each offense, for each type of crime. No such records currently exist (I have asked the head Superior Court administrator, the head of the Statistical Analysis Center, and others!), which would enable me  – or anyone – to show just how dramatically dysfunctional the system is! I have NO doubt that these improvements would solve many of the problems now plaguing our criminal justice system.

Ken Abraham, Dover, DE, Deputy Attorney General of  Delaware 1974-1979

 (now President of Citizens for Criminal JUSTICE)