That Grinding Sound

The court system is a rickety contraption. Underpowered, overburdened and hard on the eyes, it clanks and smokes and shudders through the gear shifts, barely wobbling along. While politicians can talk tough about crime bills, and social theorists can speak grandly of justice, the task of holding the machine together falls to workaday judges, prosecutors and defense lawyers--the mechanics.

They perform this daily miracle mainly with grease, great gobs of it. The grease is compromise, and it is applied, most often, outside court, in chambers and hallways and quick telephone conversations:

Reduce the charge to manslaughter and my client will plead guilty.

Our offer is five years, credit for time served. The judge won’t tolerate anything less.

Deal done. Matter closed. Next case. Something like 90% of all criminal cases are resolved without a trial, speedy or otherwise. It might not be pretty. It might not remind anyone of Oliver Wendell Holmes, or even Perry Mason. But this is how the machine has worked--until this week. This week, in California, a wrench was thrown in the gearbox. This week, California got a new “three strikes” law. It inspired no shortage of public dialogue about fairness and compassion, deterrence and retribution. For the mechanics, however, the change was at once more prosaic and immediate: Someone had taken their grease.

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The new law, in short, dictates sentences of 25 years to life when criminals with two prior felony convictions are convicted of a third felony count, violent or otherwise. The law was born of public outrage. The idea is to throw ‘em all in jail--murderers, rapists, carjackers, burglars, anyone who can’t break the crime habit--and then lose the key.

Fair enough, but for the people who run the justice machine this is no simple matter of revving up a motor. While the public focus last week was on the first to fall--the man accused of robbing someone of 50 cents on L.A.’s Skid Row; the Oakland thief allegedly caught with stolen bicycles--the mechanics were more focused on how the law might undermine their ability to negotiate, to keep the machine running.

“The system,” said R. Dan Murphy, assistant district attorney for Los Angeles County, “functions because most cases don’t go to trial. This introduces a dynamic new element, and a great deal of uncertainty.”

Everything about the workaday process, “the system,” was being rethought, from Juvenile Court rules, to bail amounts, to pretrial motions, to appellate processes, everything. “Rap sheets,” one defense attorney said, “maybe rap sheets can’t be accepted at face value anymore.” His point: A prosecutor who says a defendant has prior felonies now will need to prove it, and perhaps even to prove that the previous convictions were proper.

Plea bargaining? There were questions on what, if anything, the prosecutors now can bring to the table. There were greater questions about what a good defense attorney should accept, and not just on third strike felonies. “The universe of settlement,” said Jeff Brown, San Francisco’s veteran public defender, “is now out of balance. Nobody knows what a case is worth anymore.” Defendants with but three strikes to play with, and who understand the stakes of the game, cannot be expected to concede any of them. This means more trials, more judges, more juries, more jails, more courthouses, more prosecutors, more lawyers. Lots of them.

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This, of course, is not the first collision in California between the justice machine and the politics machine. As public fear has boiled over, politicians have responded with sweeping reforms. When this happens, the mechanics must grab their baling wire and grease, clamber down into their device and make it all work. Usually they pull it off, and over time not much changes. Certainly not the caseload--which ought to raise questions about the wisdom of back-end reforms.

“We all know,” said one prosecutor, “that the pipeline is never-ending. You can keep jailing them all you want, for as long as you want, but unless you deal with the problems of society--poverty, truancy, one-parent families--it won’t do much good. You might scare the old guys and put away the hypes, but the young ones, the gangbangers, they won’t be deterred. They all think they are invincible.”

Such wisdom from mechanics is largely unappreciated by the reformers, who move in a different direction. More than anything, they seem determined to remove from the process all human discretion. First to fall were the parole officers. Next, judges saw their sentencing powers clipped. Now, with the “three strikes” law, prosecutors lose room to maneuver, to reason, to weigh. The movement is toward a justice machine that, more than metaphor, is truly a machine, fully automated, no questions asked, justice by the numbers, no mechanics, no grease, no tinkering. Now there is a contraption to worry about.