THE DEFENDANT: Yes.
THE COURT: Yes? What other promise has been made to you?
THE DEFENDANT: No. No other promise but your honors why can’t I get a drug program?
THE COURT: The reason you can’t get a drug program is that you’re a predicate felon.
THE DEFENDANT: I’m not! What does that mean?
THE COURT: It means that you have been convicted of a prior felony within the past ten years.
THE DEFENDANT: It’s been eleven years!
THE COURT: Any time you’ve spent in jail the past eleven years doesn’t count towards the ten.
THE DEFENDANT: Oh yeah, right. He did say that.
THE COURT: As a predicate you are subject to a mandatory state prison sentence in this case.
THE DEFENDANT: But what about the D-Trap my attorney said I could get.
THE COURT: You’re referring to the DA’s office’s DTAP program. Counsel were any attempts made to get a DTAP disposition?
DEFENSE COUNSEL: Yes. He was evaluated and rejected.
THE COURT: There you have it Mr. Hurd. You were considered for DTAP, which would have allowed you to enter an inpatient drug treatment program and if you had successfully graduated from the program, your case would have been dismissed in the interests of justice, but you were rejected.
THE DEFENDANT: But why was I rejected?
THE COURT: People what was the reason for the rejection?
MR. ZORN: No community ties Your Honor.
THE DEFENDANT: But I am tied up to the community your honors. They called my mother and she told them I was tied.
THE COURT: Apparently they weren’t satisfied Mr. Hurd and unfortunately for you it is solely within their discretion whether or not to admit you into the program. That said, do you still wish to plead guilty?
THE DEFENDANT: I am pleading guilty your honors but I’m doing it because I think it would be a waste of money to have a trial over five dollars worth of crack. What I really need is a drug program because I want to turn my life around and the only reason I was doing what I was doing on the street was to support my habit. The habit has to be fed your honors as you know and I believe in working for my money. I could be out there robbing people but I’m not and I’ve always worked even though I am disabled. And not always at this your honors, I used to be a mail carrier back in the day but then I started using drugs and that was all I wanted to do. So I’m taking this plea to save the city of New York and the taxpayers money because I can’t believe that the DA, who I can see is a very tall man, would take to trial a case involving five dollars worth of crack, especially knowing how much a trial of that nature would cost. But I still think that I should get a chance to do a drug program because I’ve never been given that chance in any of my cases and the money that will be spent keeping me in jail could be spent addressing my real problem which is that I like, no need, to smoke crack every day and every chance I get, and if I have to point people to somebody who’s selling the stuff so I can get one dollar and eventually save up enough to buy a vial then smoke it immediately and start saving up for my next one then I’ll gladly do that, and I’ll do it even though I know it could land me in jail for years because the only thing that matters at that moment is getting my next vial and I am not a Homo-sapiens-sexual your honors but if I need money to buy crack I will suck . . . .
THE COURT: That’s quite enough Mr. Hurd. I am not without sympathy for you and your plight, and believe it or not I agree with a lot of what you’ve said here. In fact I recently wrote an article for the New York Law Journal in which I addressed many of the same issues you’ve raised. One of the things I argue in this article, which will be on the front page of Thursday’s issue by the way, is that the Rockefeller drug laws, which in the early 70’s drastically increased the penalties for the conduct you engaged in, have flooded our prisons to the extent that there are eight times as many people incarcerated today than there were in 1970. Moreover, I argue that these laws, and the war on drugs in general, have eviscerated our inner cities which, because of congestion, poverty, and other factors, are ideally suited for the sort of low-level drug-dealing targeted. Consequently, by focusing on these cities this war has had a disproportionate impact on the indigent and the African-American community of which you are a member. I also argue that the overwhelming majority of people incarcerated from these poor neighborhoods are either addicts looking to support their habit or young minorities who are especially susceptible to the perceived attractions of the low-level drug trade and that those who truly profit from the sale of drugs exploit these individuals for their personal gain and yet are rarely held accountable. So yes I do personally feel that the money spent to incarcerate individuals such as yourself for several years would be better spent on treatment for individuals who are addicted to drugs. That said I am not empowered, in this case and under these circumstances, to make a unilateral decision to sentence you to mandatory drug treatment in lieu of a state prison sentence. As I’ve explained to you that decision rests solely with the District Attorney and they have not seen fit to consent to such a sentence. Consequently, your choice is between pleading guilty and receiving a sentence of three to six or proceeding to trial with all that entails. Knowing that, do you still wish to plead guilty?
THE DEFENDANT: Yes, but I still say that Mr. Zorro should have given me a drug program your honors.
THE COURT: First of all, Mr. Zorn is the assistant who is standing up on all the cases in this courtroom today. He is not the assistant assigned to your case and likely had nothing to do with the decision to reject you for DTAP. Second, I think we’ve more than adequately explained the reasons why that’s not going to happen and there’s no need to get started along those lines again. The plea is satisfactory to the court. Is it satisfactory to the People?
MR. ZORN: Yes.
THE COURT: Enter the plea.
THE CLERK: Mr. Hurd, in the presence of your attorney do you now withdraw your previously entered plea of not guilty and enter a plea of guilty to Criminal Sale of a Controlled Substance in the Fourth Degree in satisfaction of the indictment. Is that your plea? (The defendant conferred with his attorney)
THE DEFENDANT: Yes.
THE COURT: Four weeks for sentencing. How’s the 23rd ?
THE DEFENDANT: That’s fine your honors.
THE COURT: I was actually speaking to your attorney Mr. Hurd. Any date is presumptively good for you. The 23rd counsel?
DEFENSE COUNSEL: That’s fine.
THE COURT: Defendant is remanded. The 23rd for sentencing.
THE CLERK: That being the final case of the morning session, Part 46 is adjourned until 2:15.
(Audible groan from the audience.)
“Fucking Casi,” from Dane who shook his head no while smiling from his seat in the first row. “You’ve got to control these guys better. A simple allocution shouldn’t take longer than it takes to read this rag (gesturing with dog-eared Daily News) from front to back then back to front again.”
“Guy said maybe five words to me the last six months,” I said. “Must be the impending state bid that’s got him all talkative.”
“Yeah, well, he should get an extra year for taking so much time that I have to come back here in the afternoon.”
“Let the guy have his fun. He rarely gets such a captive audience.”
“True enough,” conceded Dane. “What would you say if you were about to get three to six?”
“Nobody move or I’ll shoot.”
“Good old Preskill had no objection, she got to plug her article like some guest on Leno.”
“Made my guy’s day.”
“What did he say?”
“I think he had no idea what she was talking about except that it was in some vague sense supportive. He was heartened, let’s put it that way. I think he expects a last-minute reprieve on the day of sentencing. You know a disgusted Judge Preskill sticks her neck out, lobbies the state legislature, coerces the DA, whatever, but somehow gets the guy
with three ears into a drug program. His appointed savior.”
“Is that what that was? That fucking thing on his neck. A goddamned third ear?”
“What’s the big deal? You never seen a third ear?”
“Does it?”
“No.”
There followed a not-too-brief discussion during which it was established that we’d have lunch together. This was followed by extensive analysis of the relative merits of our options and all this took far too long considering we were outside and the cold wind made my face feel like it was about to spontaneously bleed until finally an ultimatum from me to decide led to a decision to attempt a reprise—to the extent that sort of thing is even possible—of our lunch from the Friday past and so off to Little Italy we went.
On our way there we saw a strange thing.
“What in the holy hell?” said Dane.
What it was was one of those blue plywood walls construction sites are always putting up in the interests of gawker-prevention. Only this one was blood red with a small black-velvet curtain in the vertical and horizontal center. The curtain covered a port/peephole and above it in gold letters:
UNDER NO CIRCUMSTANCES SHOULD YOU LOOK INSIDE
TO SEE MAN’S GREATEST INVENTION SINCE
THE WHEEL. AGAIN, WE URGE YOU
NOT TO LOOK INSIDE
FOR ANY
REASON
!!!!
As we walked by some guy stood directly in front of the curtain. He stared intently at the immense golden words. His head lolled slightly to one side then the next as he read. Then he paused, threw the curtain over his head and looked in the hole.
We kept walking.
“Let’s sit here again Casi.”
“Fine.”
“So what do the Preskills of the world want?”
“Huh?”
“Judge Preskill, she agrees with your client in many respects she says. What does she propose as an answer? Legalization?”
“I don’t know. I guess you’ll have to read her upcoming article, only promise not to fill me in.”
“Given the source, I assume the article will be dim. But I’ve been ruminating on what she said and it’s not incomprehensibly stupid.”
“High praise indeed.”
“Let’s think about this for a moment, because I find that in our jobs it’s important to constantly think things through and analyze them; instead of just getting by with the bare minimum required of each day, without scrutinizing the landscape we’re operating in.”
“Thanks for the tip.”
“I’m going to show you something, really just as an intellectual exercise. Let’s take it from the top and feel free to chime in if you disagree at any point.”
“If you must.”
“Preskill identified two things she disagreed with and which she presumably feels create injustice. Let’s put aside any Socratic concerns over what it means for something to be unjust et cetera.”
“Yeah definitely let’s.”
“The two things were the sentences given on drug cases and more generally the whole War on Drugs bullshit. Right? Right?”
“I’ll chime in if I disagree remember?”
“Good. So regarding these matters where are people and how did they get to this point? I’ll take these questions in inverse order.”
“My favorite kind.”
“This is how I bet they got in their present situation. At some point someone told a politician that it would be to his advantage to make drug policy one of his core issues. What this always means of course is a get-tough policy since tough is the only thing to get if you want to have a job. The idea caught on with those of his ilk and soon everyone had to have their own get-tough policy. These things always rocket to the top because anyone who opposes is accused of being a drug-lover or something similar, highly intelligent things like that. In this case the ascension of these harsh, anti-drug policies was abetted by the fact that most feel drugs really are a legitimate problem that leads to all sorts of social ills, so on the surface the steps seem necessary.” He stared and I facially reminded him of the thing whereby I would only interject in the event of disagreement.
“At any rate,” he continued. “War was declared on drugs, soldiers were drafted, money spent, and new laws passed. Sentences for drug-related offenses were increased and more resources were devoted to enforcing the existing illegality of drug use and sales. So what resulted? Let’s only discuss and analyze that which we know intimately so as to avoid being the typical underinformed idiot. That means I’m going to limit myself to what this drug policy means and creates in New York of which I have firsthand knowledge. Note, however, that this doesn’t decrease the legitimacy of my observations vis-à-vis the greater population. The reason for this is simple. You know how some motions must be decided while viewing the evidence in the light most favorable to the defendant?”
“Yes?”
“Well, as I’m sure you’re aware, New York is widely considered one of the best places to be arrested in this country. This state’s appellate courts, for example, often provide greater protection to defendants than is required by the federal constitution right? Therefore by looking at the situation as it exists at one of the polar extremes we can draw far more legitimate conclusions than if we looked at a random locale not easily susceptible to extrapolation. This is true, by the way, of all aspects of the criminal justice system not just drug cases; we can safely assume that any injustices suffered by our clients here in New York City would only be exceeded elsewhere and, at least with respect to the other places I’ve practiced, I have found this to be invariably true. So I think it a valid proposition, agreed?”
“You’re really determined to flout your own procedure aren’t you?”
“Very well. Here’s what you’ve got. I handle only felony cases, and I currently have about sixty or seventy of them in various stages. Of these cases, fifty to sixty percent are drug-related. Now when I say drug-related I’m not referring to criminal acts that arise out of drug addiction, I mean cases where the top count is either the possession or sale of drugs. My understanding is that these numbers generally reflect what other similarly-situated attorneys experience. If that’s the case, then we can assume that about one out of every two people charged with a serious crime in this city is a prisoner of this war on drugs. Of course one of the first things to note about this high volume of drug arrests is their ultimate impotence. I don’t know of anyone claiming that the drug trade in this city has been curtailed in any meaningful way. There are hundreds of drug spots in the city each of them moving thousands of dollars worth of drugs a day. The aforementioned fifty percent seem to be highly fungible and all these four-to-eight sentences mean is that someone else steps in and starts preparing for their state bid.”
“True.”
“So who are these people the police round up when they go on rooftops with binoculars, or pose as strung-out addicts to buy five-dollar vials, or beg some poor sap to sell them their extra bottle of methadone? Well one thing we know about them is they don’t have any money. We know this first of all because we’re their attorneys. It’s hard to imagine any group of people being held in less esteem than we are by our clients. The overwhelming majority of them feel that we are either bumbling incompetents—after all if we’re otherwise why aren’t we in private practice making real money?—or, even worse, actively conspiring with the DA against them as evidenced by the fact that we know and appear to act friendly towards a lot of these people who are prosecuting them. Throw in that we are employed, at least in their eyes, by the same government. We also know that people tend to greatly overestimate the efficacy of private attorneys. Now despite these time-honored perceptions, I find that I have no shortage of drug clients and that other attorneys, who I’m sure inspire far less confidence than I do, also have an abundance of drug cases. What this means is that these people, who were arrested for participating in the drug trade and who presumably profit from what is unquestionably
a highly lucrative industry, are unable to scrounge up enough money to hire an attorney in a city that has more attorneys than mosquitoes, and this is the case even though they firmly believe their failure to do so will result in them going to prison for long stretches. Throw in the added fact that a substantial majority of this same population is being held in jail on bail the equivalent of which I spend in assorted bars in a typical week. Really though I only say all this in the interests of being thorough since we don’t really need this recitation of facts to tell us that the majority of these defendants are indigent right? Seeing is believing and we can see that these people are primarily toothless drug addicts or twerpy teens who think they’re being hard and ultimately these are the people that are getting sent upstate and who the police are cracking down on. So what do you say about this situation Casi? Someone like your thrice-eared friend peripherally participates in a drug sale in exchange for the grand sum of one dollar and now he’s doing three to six.”
“I think a DA might say don’t sell drugs that way you don’t have to worry about being treated fairly by our judicial system since you won’t be arrested I think that’s what they might say.”
“And that kind of statement is always fairly persuasive I must admit.”
“And it has the added benefit of making the speaker sound cynical and tough thus shielding him from accusations of naïveté, which is like the worst quality you can have, and all the while the speaker still feels morally superior because he doesn’t sell drugs so chalk that up as another reason why he’s a good person.”
“Of course the problem, and I use the term loosely because I don’t give the slightest what happens to these people, is this Casi. We’ve already said that a lot of these people out there selling drugs, and seemingly a higher percentage of those arrested, are themselves addicted to drugs. And naturally the two things, the fact that the person is addicted to drugs and the fact that they have been arrested for participating in a drug sale or the possession of drugs, do not exist independent of each other but instead the person is possessing or selling drugs because they are addicted to them. Given that fact, how much free will, of the kind people like your speaker love to take shelter in, is actually involved here? We know, for example that a mother will leave her newborn alone in her apartment for days to go buy and smoke crack. Addicts will go days without eating to save their money for crack.”
A Naked Singularity: A Novel Page 20
