The trouble is people like Donahue’s client don’t hear about these changes. Because they’re not hard-core criminals, they’re out of the loop. They get the scoop only after it’s too late. And the judges, no matter who’s in front of them, no matter what the extenuating circumstances, must pronounce at least the minimum statutory sentence. In practice, that means judges no longer have the right to exercise discretion, and that right has been handed to prosecutors who decide whether to file charges and, if they file, the specific nature of those charges. If someone’s been killed, for example, the prosecutors might press for first-degree murder, involuntary manslaughter, or any charge in between. They typically seek whatever they think they can get away with in the giant bazaar that operates outside the courtroom. The two sides play a game of chicken, with lawyers testing one another for weakness.
Defendants represented by public defenders or court-appointed attorneys, although they may win the lawyer lottery and end up with a spirited, able defender, are often assigned lawyers who are basically overwhelmed. If you can’t afford to hire your own attorney, contends Sergio Ayala, who is doing twenty-five to life in California, “the public defender will only lead you to the slaughterhouse.”10
Louisville attorney Nathan Miller recalls that when he worked in the public defender’s office in southeastern Kentucky, he would routinely carry an impossible caseload of thirty-five to forty felony cases:
At one point I also was responsible for five hundred misdemeanors. People would leave the office and they were supposed to hire new people to take their places, but often there were no replacements. The cases would just be turned over to the people already there. The caseload was such that I couldn’t give attention to cases that they deserved. The first time I would see my clients was the day they would walk into court to plead guilty. I wanted them to understand they didn’t have to take the deal. But a lot of public defenders are not like that. There’s just a lot of pressure to move cases. It’s just the same song and dance every day. It’s heartbreaking, frustrating, and the pay is not very good.
Often, Miller said, cases cried out for the defense attorney to file a written motion of some kind, but there just wouldn’t be time.11
The Sentencing Reform Act, part of the Comprehensive Crime Control Act of 1984, was a federal statute that was supposed to increase consistency in federal sentencing.12 The act abolished federal parole and established the U.S. Sentencing Commission, an independent panel within the judicial branch. Panel members are appointed by the president and confirmed by the Senate. They serve six-year terms.
The new federal sentencing guidelines went into effect in November 1987. They weren’t really guidelines anymore but rather mandatory decrees requiring longer minimum sentences, even for first-time offenders. District Court Judge J. Lawrence Irving of San Diego, a conservative who’d been appointed by President Reagan, ruled the new guidelines unconstitutional, but he was overruled by the Supreme Court in January 1989. Complaining that the mandatory sentences were too harsh, he soon resigned. “If I remain on the bench I have no choice but to follow the law,” he said. “I just can’t, in good conscience, continue to do this. There are rarely two cases that are identical. Judges should always have discretion.”13 Mandatory sentencing, he said, turns judges into “robots.”
Meanwhile, many states retooled their own statutes, using the harsher federal sentences as a model. Again, the discretionary power lost by judges flowed mostly to prosecutors.
Jed Stone, a defense lawyer who works in Waukegan, Illinois, noting that prosecutors sometimes seem to exist inside an intellectual enclave, said there’s a danger when individuals operate from an insular system in which “there is a failure to see the other side. You begin to view people as others. And when you begin to see people as other than you, they begin to become expendable.” Cutting corners to get convictions and piling on additional years can look like a correct course when the mind has fashioned an image of the defendant as a kind of subhuman target. When a person reaches such a mind state, he or she may view evidence that conflicts with a settled conclusion as having no bearing on the case. In Florida, for example, after DNA testing showed that the pubic hairs at the scene of a rape did not belong to the man convicted of the crime, prosecutors arguing against his appeal said that pubic hairs found on the victim’s bed could have come from movers who brought furniture to the bedroom a week or so earlier. “They essentially argued that there were naked movers,” said Nina Morrison, a senior staff lawyer in the national office of the Innocence Project.14
Prosecutors who use such extreme means to attain questionable ends have lost their moral standing. Out on the street, they come to be viewed as just one more criminal gang. That raises the stakes for everyone—police, suspects, and everyday citizens, and society becomes more dangerous, which is precisely opposite to the desired outcome.
8
The Innocent and the Dead
IT’S HARD TO IMAGINE BEING IN THE SHOES OF A CONVICTED INNOCENT. TAKE the case of Timothy Cole. In 1986 Cole, twenty-six, an ex-soldier and student at Texas Tech, was positively identified by a student victim of a rape and robbery. After trial and conviction in Lubbock, Cole was sentenced to twenty-five years. He’d refused a plea bargain because he said he wouldn’t plead guilty to something he didn’t do. After his sentence was read, recalled his mother, Ruby Session, her son fell to the courtroom floor crying uncontrollably. She got off her chair and down on the floor with him, hugging and rocking him. She later said, “My son, a 26-year-old man, lying in his mother’s arms. And that’s all I could do. And that’s the last time my baby was in my arms like that.”1
Performing hard labor surrounded by dust and pollen and sleeping in a poorly ventilated cell, Cole found his childhood asthma kick in during his sentence. Twice he was found unconscious and rushed to the emergency room. In 1992 he went before the parole board, but he refused to be contrite for a crime he didn’t commit, and parole was denied. His letters grew increasingly sorrowful and devoid of hope. In 1993 he wrote to his mother that his “only dream was to play in the NBA. That dream won’t ever come true. I don’t have any more dreams.” In a postscript, he told her, “I get to make phone calls every 60 days now.”
Several years after Cole’s trial, another Texas convict, lifer Jerry Wayne Johnson, began writing letters saying he’d committed the rape for which Cole was convicted, but he wasn’t sure who to tell or where to write, and no one with power paid any attention to his confession. In 2007 Cole’s mother found one of those letters, but it was too late. On December 2, 1999, Tim Cole had suffered chest pains and collapsed. He died at age thirty-nine. He’d essentially been slowly put to death.
Cole’s family found a lawyer with the Innocence Project who agreed to try to clear Tim Cole’s name. The group had known about Johnson’s confession earlier, but it was wary. Given its resources, the Innocence Project must be terribly selective in the cases it tries to clear. “We’ve had several of these guys,” the lawyer, Jeffrey Blackburn, said, referring to the occasional guilty convict who pleads guilty to someone else’s crime. “None of them have checked out.” In the Cole case, however, Blackburn discovered that the rapist’s semen was still in storage. DNA testing of the semen ruled out Cole as the perpetrator and found a complete match with Johnson.