When he's not shooing hogs off his back porch in Darien, Ga., criminal defense attorney Dale Carson likes to ponder constitutional questions. "There is," he notes, "no constitutional basis for pretrial punishment." This sounds esoteric; it's not.
It's not esoteric when you neglect to pay a traffic ticket, have your license suspended, then get busted and dragged to jail. After you lose your job and pay the bail bondsman, the attorney, jail fees and court fees, you'll feel punished all right, even if the judge dismisses the charges or the state decides to "null-pross," or drop, the case.
While you're pacing the concrete in the Jacksonville jail, you may vaguely recall that the Fifth Amendment to the Constitution declares that you shall not be "deprived of life, liberty, or property, without due process of law." Even a short jail term deprives you of liberty and property. That's two out of three.
The law draws a distinction between imprisonment and detention and creates legally distinct institutions for those purposes. Prisons are where convicts, i.e., people convicted of a felony, are punished. Jails are where people are detained prior to appearing before a judge. In jail, you're a detainee, not a convict. That's why our lockup is called, formally, the John E. Goode Pre-Trial Detention Facility.
There are only two justifications for detaining people in jails: the risk that the accused will commit another crime or flee to avoid trial. Certainly people accused of felonies need to be arrested and detained until a judge can review whether they should be released on their recognizance or bail.
But what about the 15,000 people arrested yearly in Jacksonville for misdemeanors, which are petty offenses? Do you double-bolt your doors and lock and cock your Glock to protect yourself against traffic-ticket scofflaws? Or bicyclists who fail to use appropriate lights at night? Or loiterers? Or kids who sock each other in the puss? Or spaced-out gorks with one or two joints of C. Sativa or C. Indica in their pockets?
These offenses require correction, but not jail. Mostly, people aren't going anywhere. (If they do fail to appear, judges will issue arrest warrants, and they'll really get hammered.) Police, if they wish, or if they're ordered to do so, can issue a Notice to Appear. This is a document that looks like a traffic ticket but directs the perp to show up in front of a judge at a specific time and date. Then a judge, not the cops, will decide if an offender should serve a short sentence in the local jail or county prison farm.
For the purposes of justice, it's often sufficient to simply order the offender to pay the tickets or go to Walmart and purchase bike lights. Using sweet reason, judges sometimes can even persuade dopers to drop the weed and instead, when they need release from this vale of tears, to enjoy in moderation the fine adult beverages lawfully dispensed by the glass or by the bottle by the upstanding merchants who advertise in this periodical.
In the past, police jailed petty offenders because, until they were behind bars, cops couldn't paw through paper files or phone the FBI to see if the arrestees had prior offenses, detainers or warrants. That's not true today, when cops have laptops in their cruisers and can instantaneously see criminal records from every state in the union plus Guam, Puerto Rico, Samoa, the Virgin Islands and Pacific atolls too numerous, crab-infested or radioactive to mention. If anyone were stupid enough to commit an offense on American-occupied ice in Antarctica, I'm sure it would rise to the top of the database.
Many good things happen when petty offenders are not arrested but instead are allowed to clean up their messes in the world instead of in jail:
1. They, and their mommas, aunties, sisters and spouses — let's not forget Grammy and Gramps — can hold on to their money rather than flushing it down the criminal justice system. Instead, everyone can fix teeth, buy cars, renovate kitchens and bathrooms, and educate children.
2. They don't have criminal records, which can be accessed from computers, tablets and cellphones and used to deny them jobs, apartments and even call-backs from potential sweeties on Match.com!
According to my research, the number of people arrested in Jacksonville is exactly the same every year regardless of the crime rate. When crime goes down, as it has for the past decade, cops fill the jail and courts with schnooks not crooks. The criminal justice system here employs more than 5,000 people directly and indirectly in local, state and federal government and their numerous contractors. Those cells have to stay full for their rice bowls to be filled and their pensions topped up.
Years ago, in a moment of idealism and ignorance, I appeared before the Jacksonville City Council and argued that, if cops issued NTAs instead of busting petty offenders, an expensive new courthouse would not be necessary. I discovered, of course, that when pharaohs are building pyramids, they don't want to hear from those who make the bricks or pay for the stones.
Arresting petty offenders because the system needs bodies in the cells is not justice, it's pretrial punishment. It's unconstitutional, and it's an outrage even here,
In Crime City.
Full disclosure: Lawyer Carson co-authored "Arrest-Proof Yourself" with me.