We all start in misdemeanors. If you are going to get locked up over a misdemeanor, you are sent to jail. Usually, you spend no more than 180 days there. The most common sentences are for 30-60 days. So you stand at counsel table and plea bargain with defense lawyers over these numbers. You might say, “this DUI was particularly bad, I want 30 days jail in addition to the normal alcohol treatment programs.” And the defense lawyer, invariably, wants a plea deal that will keep her client out of jail. They ask you to imagine what jail would be like for their defendant. Don’t do that to them, the lawyer will say. And I think most young prosecutors actually do try to imagine what it would be like to do time in jail. We take a jail tour during our new hire training. I remember that it was eye-opening. I remember being surprised by the building itself, as much as anything else. It looked like a high school, complete with cinderblocks everywhere and bad murals on the walls.
Prosecutors, even in misdemeanors, have a lot of discretion. So when you are standing there talking to the defense lawyer and thinking about what amount of jail (if any) is just, you have to imagine the impact of the jail on the defendant. Will this jail term deter future misconduct and punish past misconduct? In order to answer that question, you can’t avoid a more basic question. A more primitive question. How unpleasant will this be for the defendant? The defendant might be a hardened criminal, with many years served in prison already. In that case, the jail term is going to be a walk in the park, then it might not be a deterrent at all, nor is it much of a punishment. On the other hand, a suburban kid with no record might be understandably terrified of jail. This person might be extremely deterred by the thought of even a short jail term. This hypothetical delicate suburbanite might suffer immensely in jail, a truly extreme punishment. So we stand there and put ourselves in the shoes of defendants, imagining what it would be like for them.
By the time you get to felonies, all this imagining is out the window. In California, a plain vanilla felony will get you low, middle, or high term. That’s 16 months, 2 years, or 3 years. If you have a serious or violent felony prior, this is doubled. Other crimes in your past can make the sentence even longer. “Use a Gun and You’re Done” was the actual name of a law designed to extend sentences for people who use guns to commit felonies. And the title is 100% true. If you use a gun and cause great bodily injury, you can get 25 years to life, even if the underlying felony had a high term of 3 years. Speaking for myself, I just can’t imagine what it would be like to face several years in prison, much less actually serve that time.
That’s why I got so much out Oscar Wilde’s The Ballad of Reading Gaol. Wilde got 2 years in custody for his participation in a homosexual prostitution ring. In other words, mid-term on a vanilla California felony. Many thought it was an unfair sentence at the time, and today much of what Wilde did is legal. He says,
I know not whether Law be right,
Or whether Laws be wrong;
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year
A year whose days are long.
It’s hard not to read the poem without thinking that Wilde should not have been there in the first place. And since the poem is written in the first person, with Wilde talking directly to you, it is difficult not to confront him and his experience. In other words, it’s impossible not to think about what it would have been like for him during his two years.
This too I know – and wise it were
If each could know the same –
That every prison that men build
Is built with bricks of shame,
And bound with bars lest Christ should see
How men their brothers maim.
Wilde cannot be written off as evil, or stupid, or as a different type of person, the type that goes to prison. You can’t say, “I’m not that type” or “that could never happen to me.” To the contrary, Wilde is almost certainly more intelligent and sensitive than his reader. His art proves it. And Wilde was an intellectual, a literary celebrity. Prison is not exactly an occupational risk for literary types.
The vilest deeds like poison weeds,
Bloom well in prison-air;
It is only what is good in Man
That wastes and withers there:
Pale Anguish keeps the heavy gate,
And the Warder is Despair.
Wilde died from an ear infection that he contracted in custody. I’d like to return to his poem in a few years, and try to remember it’s lesson. That prison is a cruel and hopeless place. And I’d like to let him help me imagine what it is really like to serve those years. Something I can never fully do, but that his writing my help me get better at.
Equal justice under law is not just an empty motto for the prosecutors I’ve met. That’s why, even though we might consider the individual impact of an offer, most of the time we strive for uniformity in plea bargaining. Many offices use an “offer sheet” with standard offers for common crimes. This sheet my even be detailed enough to account for the individual circumstances of some offenses. For example, it might contain a standard offer for a first time DUI, as well as a standard offer for a second and third time DUI, each a little more serious than the last.
Spoiler alert: it’s pronounced like “jail.”