When you assume . . .

Once prosecutors charge a person with a felony, that person is entitled to a preliminary hearing (or a grand jury hearing, though those are much less common). The purpose of this hearing is to determine whether there is “sufficient or probable cause” to believe that the person who is charged could be guilty of what s/he is accused of.

The idea is that a felony is sufficiently serious that somebody must check to be sure that there is some basis for filing the charges before the system goes full-steam ahead with a prosecution. Theoretically, the judge (at a preliminary hearing) or the grand jury (at a grand jury hearing) acts as a neutral third party, evaluating the evidence provided by the prosecution and determining if there’s enough to go on.

But judges aren’t immune from the same prejudices that afflict the rest of us. If police and prosecutors have bothered to drag somebody into court, they must have a good reason, right? If this person didn’t do anything wrong, why would prosecutors be wasting their time on him/her?

A few weeks ago, an attorney in the office asked the judge to postpone a client’s preliminary hearing. The client, who had been charged with shoplifting something expensive (can’t remember what), was in a live-in rehab center 75 miles away, and it would be harmful to disrupt her treatment by forcing her to come all the way out here to the courthouse. (Some rehab programs make you start all over from the beginning if you miss a day.)

The judge responded: “Why should I have any sympathy for your client? She stole from a store.”

Of course the statement about sympathy is cold-hearted, not to mention short-sighted (doesn’t society have an interest in keeping people in rehab if that’s where they need to be?).

But here’s the more serious problem: the judge—the judge, whose job it is to take a reasoned, unbiased look at evidence and make sure that the charges are legitimate—had already decided that not only were the charges legitimate, but that the client was guilty. The fact that the client had been charged was enough for the judge to believe she deserved to be charged (and, for that matter, that she deserved to be incarcerated).

Juvenile incarceration

A lot of people don’t realize that minors, unlike adults, do not have the right to a jury trial when they are accused of committing a crime. (The right to a jury trial is in the Sixth Amendment of the U.S. Constitution. The Constitution is usually considered kind of a big deal by lawyers.)

Here’s the reasoning: The goal with minors who commit crimes is rehabilitation, not punishment by incarceration. As such, minors don’t have to worry about “defending” themselves in a court of law from those who would seek to deprive them of their liberty as a penalty for their criminal acts. So minors don’t get jury trials because they don’t need them.

So what do they do with all the minors that, were they adults, would be put in prison? Roughly speaking, those whose crimes would land an adult in jail go to Juvenile Hall; those whose crimes would land an adult in prison go to “youth correctional facilities.”

In practice, almost no rehabilitation goes on at these institutions. At best the kids are just left to their own devices, but too often the kids are actively mistreated by the guards (called “counselors”). Every few months or so there’s another story in the paper about some innovative form of abuse: the latest was about how the youth facility guards made certain kids fight each other so the guards could wager on the outcomes of the matches. Parents complain, but who listens to parents who have raised juvenile delinquents?

For all practical purposes, these kids are in prisons--and badly-run prisons, at that. And they never even got a jury trial.