Thou Shalt Not Ration Justice
This article was co-written by Tamara A. Steckler, Attorney-in-Charge of the Juvenile Rights Practice at the Legal Aid Society.
Brooklyn DA Ken Thompson recommended Peter Liang, the rookie police officer convicted of manslaughter in the death of Akai Gurley, be sentenced to 5 years of probation, 6 months of house arrest and 600 hours of community service. His reasons seem logical. It was a reckless act. The officer is remorseful. The officer will never do something like this again so prison will not "rehabilitate "him.
When we hear these words, they are familiar. As public defenders, we have used these words to describe why prison is not the right answer for our clients. As the chief defenders of The Legal Aid Society's Criminal Defense Practice (CDP) and Juvenile Rights Practice (JRP) and lawyers who have worked to raise awareness of the need to reduce mass incarceration, we want to hail DA Thompson for taking a step towards that goal.
Yet, we cannot.
We cannot hail his decision because every day our 750 defenders, responsible for representing our 210,000 adult and juvenile clients, witness poor clients, mostly Black and Latino, not getting the same treatment. Believe us, our clients convicted of manslaughter do not get recommended for probation. When clients fall under "operation spotlight" (a term used for people charged with 3 misdemeanors in a 12 month period), they receive recommendations of 6 months of jail, sometimes even a year in jail for something as minor as jumping turnstile or shoplifting. We once represented a homeless client who faced felony burglary charges for stealing toilet paper and some candy bars from a Pathmark that he was warned to not enter. We fought the case at trial and when he was convicted of petit larceny, simply a misdemeanor, the prosecutor recommended, and the judge sentenced him, to a year at Rikers, Additionally, our juvenile clients, sometimes as young as 12 years old, are incarcerated for normative adolescent behavior, like a school fight, that is criminalized only in minority communities.
So, while we really want to believe not recommending prison in this case is a brave move by DA Thompson, it is not. Bravery among prosecutors in this country would be to reduce the number of times they recommend jail for indigent defendants and to engage in an effort to effectuate real change around mass incarceration, remembering that we need to address this issue for everyone, not just some.
The Honorable Learned Hand, Chief Judge of the US Court of Appeals for the Second Circuit, declared at the 75th anniversary of The Legal Aid Society "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." DA Thompson sought to afford access to meaningful justice for Mr Liang. Sadly, our clients are not given the same consideration.