Tagged: judicial discretion

Should Felony Convicts Have Their Non-Waivable Surcharges Deferred?

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Elisabeth Haub School of Law at Pace University, Scholar, and Renowned Expert on Prisoners’ Rights.

All felony defendants convicted of a felony in New York are assessed a non-waivable $375 surcharge upon conviction. When they are sent to prison their prison accounts are assessed to pay these charges which depletes the meager amounts that inmates are able to earn in prison which otherwise might be used to buy supplies that can ease the burden of incarceration and also to maintain essential contact with their families through phone calls and visits. Theoretically, judges can defer these charges while the defendant is in prison, but the standard for doing so is hard to satisfy and the procedure for doing so has been made so enormously difficult by a recent restrictive decision  of the New York State Court of Appeals, People v. Jones26 N.Y. 3d 730 (2016), that it almost never happens. Ironically, the law governing these matters involving small sums of money is as complex as the law that controls major securities transaction.

In People v. Tookes, __ N.Y.S. 3d __, 2016 WL 3221208 (Sup. Ct. NY County June 8, 2016), (attached) Judge Daniel Conviser of the New York State Supreme Court sensitively addresses this issue and in his analysis indicates why a legislative fix is needed to address this problem. Judge Conviser in his opinion demonstrates powerfully why something that seems so insignificant to so many is so critical to people in prison. Judge Conviser in the conclusion of this opinion notes that:

[s]entencing for a trial court is not an abstract exercise. A sentence is pronounced on a human being, who, no matter what crime he or she has committed, stands in the well, often in custody, and often with family members close by, who upon a sentence to state prison will suffer a significant punishment … as the one human being who is most directly responsible for sending a fellow human being to be confined in a correctional facility where much of what makes a life worth living is taken, the sentencing court should have the ability to provide the extra soap or deodorant, the postage stamps which might make communicating with family easier or even the extra food which might make prison life more bearable.

Id. at 14. These words demonstrate a humanity and understanding that is rare to find in a judicial opinion. I hope that this decision will lead to change in the law to allow judges in appropriate cases to defer these charges at least during the period of a prisoner’s incarceration. It certainly deserves wide circulation and attention.

The Pistorius Verdict

As the Pistorius trial proceeded – unprecedentedly on television –some of the differences between South African criminal procedure and US or New York criminal procedure have been obvious. Now that the verdict is in, we have the luxurious opportunity to reflect on how those differences played out. Until the full verdict is available a full analysis is not possible but a few comparative observations are worth making.

The most striking visible comparison at this homicide trial was the absence of a twelve-person lay jury and the presence of a single judicial factfinder who, assisted by two assessors, sat in judgment of the defendant. The rendition of a verdict magnifies this difference. In New York, as in the rest of the United States, of course, the law forbids a criminal jury from explaining its guilty/not guilty verdict in any way, even to the point of prohibiting any sort of questions or special interrogatories that we regularly use in civil cases. Even when jurors are interviewed post-trial and actually tell the media why they decided a case the way they did, that information has absolutely no legal significance unless there has been an invasion into the jury room, e.g., a bribe, a newspaper article, and the like. To be sure, we do have judicial factfinders who explain their findings of fact in detail and on the record; but in most cases those factfinders are making factual determinations in connection with legal rulings, e.g., suppression hearings, sentencing, and the like – and not judging the guilt or non-guilt of fellow citizens, with all the consequences of that determination.

There are good reasons for our prohibition about impeaching a jury’s verdict. Briefly, those reasons stem from the role of the jury in our system – the people in the courtroom – and the freedom of that group of supposedly “impartial” “peers” to do what it thinks is best and for whatever reasons it wants, without fear of reprisal or reversal. That is a basic protection for defendants in our system, and, accordingly, we devote a tremendous amount of resources to jury selection and the jury process.  In South Africa, however, the jury trial was abolished along with apartheid, and the jury in a murder case – like Pistorius – consists of a judge and two assisting assessors – two jurors who, as far as I can tell, have never appeared publicly during the trial, certainly not during the announcement of their own verdict.

Less protection for the accused? Greater protection for the accused? Different protection for the accused? If you’re looking for the power of the people to do what they want to render a just verdict, that protection is missing. Visually, this is striking – a single judge is handing down the decision of guilty or not guilty. But there is something comforting about knowing exactly why the factfinder decided as it did. Of course, we are familiar with the underlying notion in our system that one way we limit judicial discretion is to require a judge to write down reasons for his or her rulings – both because it forces the judge to justify and articulate the findings and so that those rulings can be reviewed. But more than that, on a human level, it just feels right to require anyone who judges another human being – and condemns him – to explain why.

A different set of protections, to be sure. But food for comparative thought.

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