How To Keep Dangerous Criminals Behind Bars
By Alice Vachss
Originally published in PARADE Magazine, September 25, 1994
HE WAS A TEENAGER on the brink of adulthood—full of life until the killer took that from her in a rage that left her strangled and battered, abandoned in the park.
He confessed. He admitted to cocaine addiction. He was a suspect in a series of apartment burglaries as well as credit-card thefts, and he had a pending burglary indictment. Still, when the jury deliberated too long, the killer was offered a plea bargain: Admit to manslaughter and burglary and receive a sentence of five to 15 years—a sentence he could have received even if the killing had never happened.
The truly frightening question is this: If the prosecution consented to this plea for Robert Chambers in the "Preppy Murder Case" with the whole world watching, then what kinds of plea bargains are made behind our backs?
Across the country, just 3 percent of all felony arrests go to trial and 97 percent are plea bargained or dismissed, according to a recent report by the Bureau of Justice Statistics. The report also showed that "arrest-to-trial" rates range from 2 percent in San Diego to 4 percent in Dallas to the "high" rate of 9 percent in Portland, Ore. Trial rates do vary according to the type of crime: In major U.S. cities and counties, the Bureau reported, 23 percent of murder and manslaughter arrests result in trials, while less than 5 percent of stolen property arrests do. Only about 11 percent of rape cases are tried.
Why does this matter? It is only in the tiny percentage of cases where a defendant goes to trial (and then is convicted as charged) that sentencing provisions are truly "mandatory." As a response to America's ever-growing fear of crime, new "get-tough laws" are great rhetoric. The reality, however, is that they are falling short, dangerously short. Unless we reform how prosecutors and judges plea bargain, "tough" sentencing laws; no matter how well intended, are doomed to failure.
In 1982 Melvin Carter, known the "College Terrace Rapist," was allowed to plead "no contest" to 23, counts of rape, assault, burglary and attempted burglary. He confessed to raping almost 100 women near three California college campuses. He was sentenced to 25 years in prison, but under California law that sentence actually translated to just 12 years in prison and three years on parole. Why? Because in California, and in most other states, the sentence is reduced by "good time" (time off for "good behavior"), "jail time" (time spent incarcerated before sentencing) and parole. San Francisicans protected Carter's 1994 parole to their area. Instead, Gov. Pete Wilson promised to parole him "out in the wilderness someplace." The remote town of Alturas was selected. More than half of the 10,000 residents in the Alturas area protested, drawing national attention but limited results. Carter remains there but has agreed to stay confined to his prison camp.
Lost in the heat of debate was the one fundamental injustice that precipitated all the rest: the original sentence. When the judge let Melvin Carter plead "no contest," and when the state failed to file additional charges, that meant the sentence Carter was required to serve was less than one-and-a-half months for each of his confessed rapes.
Why would prosecutors and judges assist dangerous felons in avoiding stiff sentencing laws? Because we have allowed it to be in their self-interest to do so. To understand, we need to look at the anatomy of a plea bargain:
After a frustrating day at work and an argument with her ex-husband, a young woman in upstate Gouverneur, N. Y., made a mistake many people have made before her: She decided to drown her troubles. She went with friends to a bar. The drinks flowed freely. Eventually she passed out in the restroom and was found after hours by the bartender and his four buddies, who had known her for years.
Days later, the rumors started. The five "good boys" (as many in the town viewed them) were brought in for questioning. Several confessed to having sex with the woman while she was passed out. All of them eventually were indicted for first-degree rape, but the prosecution was an unpopular one. The bartender was the son of one of the town's more prominent citizens. Also, because the victim had been unconscious, proving the crime required hard work and effective investigation. No one from the prosecutor's office seemed eager to jump into that ring. The case dragged on for a year and a half. On the eve of the trial, the defendants were allowed to plead guilty to "sexual misconduct, " a misdemeanor, and were sentenced to $750 fines.
No one had told the victim about the "deal." When she tried to protest, her name became public. She chose to pay that price to continue the fight Krista Absalon and her sister, Clover Forsythe, formed St. Lawrence County Citizens for Women's Justice. They filed complaints with governor's commissions and started a campaign to repeal the law making "sexual misconduct" a crime. Why? First-degree rape is the second-highest level felony in New York. But the penal law also says that the exact same crime is misdemeanor sexual misconduct, where the most serious penalty is only a year in jail. It is completely up to the prosecutor whether to treat rape as a serious felony or as barely a crime.
Krista testified before the State Legislature to change the law. To date, "sexual misconduct" remains on the books. But a week after her testimony, Gov. Mario Cuomo, facing a tough re-election appointed a special prosecutor who is fighting, so far successfully, to void the plea and bring the case to trial.
What happened in Gouverneur, N.Y., is shocking. But what is even more disturbing is that it is not an aberration. True, it is rare to have a misdemeanor like "sexual misconduct" which is identical to its felony counterpart. (It is so rare that it serves as a message that, when it comes to sex crimes, New York gives prosecutors even more leeway than with other crimes.) But most crimes include what are called "lesser offenses." Carjacking, for example, includes the lesser offense of joyriding. Murder includes assault.
We can talk about mandatory sentences all we want, but we have yet to enact a law that prevents the kind of plea bargaining that does an end-run around the word "mandatory." Defenders of the plea-bargaining system are quick to point out that the courts could not function without it. The volume of cases is too high to try them all. But even if plea-bargaining is a necessary evil, ridiculously lenient please are not. The misuse of plea-bargaining is precisely where our criminal-justice system fails.
Common sense would dictate that when the state agrees to a plea bargain, its decision is based on the seriousness of the crime. But prosecutors openly admit that they also take into consideration the difficulty in obtaining a conviction. And they take into account political self-interest. Prosecutors run for re-election based on conviction rates. Since so few cases go to trial, conviction rates are based primarily on plea bargains. These rates in no way reflect the severity of penalties. The five accused rapists in Gouverneur, N.Y., would count as five successes on paper.
We have a right to expect that our prosecutors are willing and able to take a case to trial not only in high-profile cases but also whenever it is necessary to assure an adequate sentence. Instead, what we get too often are press releases. We can and must hold prosecutors and judges accountable when they fail to do their jobs. We need to start treating the elections of prosecutors and judges as being at least as critical to our lives as the elections of mayors and governors. And we need to evaluate governors on their judicial appointments.
No one needs to know the intricacies of the law to evaluate a judge. Look at qualifications. What kind of background does the judge have? Is it relevant experience, or is it a series of political appointments? And even more important: Judges can and should be evaluated on their decisions—which are public record.
Prosecutors can and should be judged on their overall performance, on the overall results they achieve and, more fundamentally, on their willingness to step into the ring. Since this is difficult to assess, the key is to look for measurable criteria.
Like politicians tell us, it is time to say enough is enough." But it is time to do that in the voting booth, where we can insist on genuine change. We know that, whatever the reason, predators are serving too little time in prison. But we cannot fix that solely by increasing the potential penalties. Laws can't force prosecutors to do their jobs.
But we can.
© 1994 Alice Vachss. All rights reserved.
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QUESTIONS TO ASK ABOUT YOUR DISTRICIT ATTORNEY
- Is there consistent emphasis on prosecuting violent crimes? Or is the DA's office mobilized only for high-profile crimes?
- How many and what kind of felony arrests are dismissed or plea bargained for sentences of less than a year in jail? Why?
- How are resources (money, staff) distributed? For example, is the sex crimes bureau staffed by recent law-school grads or by skilled, experienced career prosecutors?
- Does the rhetoric match the reality? If the DA is touting a plea bargain as proof of "tough" policies, compare the maximum penalty to the date of parole eligibility.
- Is the DA duplicating services? Consumer-fraud bureaus make good press releases, but the same services may be provided elsewhere.
- Does the DA take on the tough cases? What's the track record on crimes that are harder to prosecute, such as child abuse and domestic violence?
- Does the DA publicly express outrage about a crime only when there is strong proof (a confession, eyewitnesses, forensic evidence)?
- What's the response to complaints and criticism? Is there substantive change? Or is it limited to naming a new bureau (or person) to handle an old problem?
WHAT YOU CAN DO
If you want to change the laws, write to your state legislators. For the most part, it is state law, not federal law, that controls what is being done about violent crime. If you can't find data on the DA's office, advise your newspaper.
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