Years ago I had a client, the son of two caring parents who themselves had done well. Upper middle class professionals. The son wasn’t a bad kid. Incredibly bright, he was socially awkward and “lacked direction” as the phrase goes. He was also not street smart, which probably was a consequence of his awkwardness. He allowed himself to be taken advantage of by other kids who themselves were not evil, but were aware they were breaking the law in more serious ways.
My client was linked to property that had a few days earlier been stolen out of cars around the neighborhood. It was clear to me that he had not participated in the breaking and enterings. But it was also clear that at the very least, he probably knew what he was doing was not on the up-and-up when he agreed to buy the property and pawn it. He probably did not know just how serious the conduct was.
It was certainly a triable case, but the State could argue that the doctrine of recent possession was enough to link the client to the breaking and enterings, and that the client knew or should’ve known that he did not lawfully own the goods when he pawned them (using his own ID!) for less than $100 a few days later.
Not a lot of money was at stake. My client probably did what he did to fit in, which is probably why a few months later, in the midst of facing a raft of charges in the stolen property incident, he was caught in the next town over with marijuana following a police stop.
The stop was legal. And while he did not consent to a search of the car, the “odor of marijuana” from the car was pungent enough to allow a search based on probable cause. Felony marijuana charges.
Now, you can say: what is wrong with this kid? Why, in the midst of facing felony charges, was he around any marijuana at all?
And that’s a fair question. Believe me, it was a question asked in raised voices and with stern demeanors for months.
Ultimately, knowing that, depending on the order in which he was tried and potentially convicted, he could face some active time, he pled guilty to a subset of the charges.
What I think about is that these were serious and terrible mistakes made in his early 20s that left this young man a felon for the rest of his life.
The Burden of a Criminal Conviction
The burden of a criminal conviction is real, not just because of the social stigma and the limitation on gun ownership rights. The burden of a criminal conviction means an economic future that is more uncertain than it otherwise would be.
One third of Americans today at age 23 have been arrested at some point in their young lives (excluding minor traffic offenses). This is outrageous, not because the conduct is bad, but because we have made a society which arrests so. many. people.
If you’re white and reading this, then you may think this statistic exaggerates the problem. And that’s because people of color are arrested at much higher rates than whites. Is the problem a socio-economic problem? Or is the problem one in which communities of color face more aggressive policing? Or is it that certain communities of color lack resources to address problems outside the purview of the criminal justice system, and therefore young people color find themselves in the system having been arrested, and facing conviction.
Rethinking the Problem
The criminal justice system has evolved from a place in which predominately violent and serious property crime was addressed, into a system in which all kinds of social ills are dumped, with the idea being that if we can’t fix a social problem, at least we can label the offender with a “criminal conviction” for the rest of his or her life.
That is an incredibly costly way to approach the problem. The costs are hidden from the majority culture: felt largely in communities of color, among the poor, and individuals by people who not only have inadequate resources to deal with their real life problems, but now have a criminal conviction to boot.
I’m not sure what the ultimately solution to these deep seated problems is. There probably isn’t any solution. But one approach would de-emphasize the criminal justice system, making it an extraordinary remedy for society’s most serious offenders, and not something into which we cavalierly toss people (especially young people) in order to “teach them a lesson.”