Bogus Charges and Rent on the Courtroom

Steve Russell

In the criminal justice system, we speak of “charging for the use of the courtroom,” or “charging rent” for short. If that does not get your attention, it should, because you pay taxes to keep courtrooms and judges available if you need them. You should not have to pay again when you need a trial.

Still, the practice is common enough that recent figures show 97 percent of federal criminal cases ended in plea bargains rather than trials and most state systems work the same way. How much is the rent on the courtroom? One study matched similar drug offenses and found the average plea bargain was five years and four months for cases that drew 16 years after trial.

If your kid gets arrested for hanging around with somebody who possessed drugs—and the police do normally take everybody in who was close to the drugs—you have to answer some hard questions. How much justice can you afford, when the lawyer quotes hundreds of dollars for a plea bargain or thousands for trial? If you can afford a trial, do you feel lucky

Even if you would bet your freedom, would you bet your life? The most common use of the death penalty is not killing convicted killers. It’s forcing accused killers to cop a plea.

One reason the courts look askance at criminal laws that allow completely innocent people to be charged is because once a person is charged, the pressures to plea bargain are formidable.

The Arizona Supreme Court recently created a criminal law that applies on its face to innocent behavior with the stroke of a pen. The Arizona legislature outlawed child molesting defined as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.”

Child molesters may be the scum of the earth, but hasn’t the legislature forgotten something? Most legislatures make that conduct a crime only when it is for the purpose of sexual arousal. A court asked to declare the law unconstitutional for criminalizing innocent conduct can and often does save the law by assuming the legislature intended that the government have to prove an unlawful purpose.

The Arizona Supreme Court was invited to save the law in the customary way but declined. Therefore, in Arizona, it remains a felony to change a baby’s diapers or give the baby a bath. We should, the Arizona court held, trust the prosecutors not to bring absurd charges. Besides, showing your purpose was innocent is an affirmative defense.

It’s important to understand how that works.

The prosecutor bears the burden of proving every element of a crime beyond a reasonable doubt.

The accused bears the burden of proving an affirmative defense by a preponderance of the evidence.

How much justice can you afford? Do you feel lucky?

There are lots of Indians in Arizona and statistics suggest that many of them can’t afford much justice and have not had great luck in front of non-Indian judges and juries.

Why in the world would a prosecutor want an innocent Indian to have to register as a sex offender? Surely they would not do that just to run up their conviction rates?

I hope not. Whether to assume all prosecutors will always act in good faith is up to Arizona voters or, in this case, the Arizona Supreme Court.

It’s worth notice that few lawyers with substantial criminal law experience are likely to make it to the Supreme Court, state or federal, because civil lawyers dominate the selection process. Therefore, Supreme Court justices are not well fixed to have opinions on what prosecutors will do when tempted to cash a blank check of charging authority.

Assume with me a prosecutor with no bad motives but a lot of cultural bias. A child welfare bureaucrat thinks that an Indian child is being raised by incompetent parents but can’t prove it. The case worker really believes it would be best to remove the child.

Remember how often this scenario played out before the Indian Child Welfare Act? Do you think the case workers who consider Indian parents unfit generally and that Indian children must be removed to white homes just disappeared out of state systems when the feds passed ICWA?

Suppose you have a child welfare case worker who thinks a particular Indian child that is—from the case worker’s viewpoint—unusually quiet and shy is in fact being molested. But there’s no evidence that the child is being molested. There is evidence that the child is routinely touched in a manner that violates the face of the law.

I am reminded of a real case where a violent boyfriend—when he got done slapping his girlfriend around—hit her dog in the head with a hammer. The girlfriend was at the prosecutor’s office the next day wanting to drop the assault charges he got for slapping her around.

The prosecutor made her believe the case would not be dismissed unless she signed the dog over to a rescue group. I can’t read minds and do not know if the prosecutor was bluffing, but the dog got signed over.

If a case worker and a prosecutor in Arizona thought an Indian child needed to be protected by getting it out of the home, filing the criminal charge is easy and taking away the child when the parent is arrested is also easy.

You are the parent, and you get the hint that the case would go away if you agree that the child should be removed. ICWA stands to influence a tribal placement if the child is removed. So the parent is left asking the hard questions. How much justice can you afford? Do you feel lucky?

The Arizona Court of Appeals had reversed the child molesting conviction because, the court held, the state should have to prove the touching accompanied by a sexual intent. The Arizona Supreme Court vacated the Court of Appeals ruling on September 13 in a split decision of State v. Holle.

A motion to reconsider is pending in the Arizona Supreme Court, a court on which the justices have to face retention elections. Should the court refuse to reconsider, only the Arizona legislature can declare that changing diapers and bathing babies are not felonies. If neither the Arizona Supreme Court nor the legislature fixes the problem, then people in Arizona will have to trust the prosecutors not to abuse the power to arrest people for innocent conduct.

How much justice can you afford? Do you feel lucky?

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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