|Ryan Gosling in Fracture (2007).|
Image courtesy Allmoviephoto.com.
We're coming in from our semi-hiatus to report on an unusual sentencing decision currently on appeal at the California Supreme Court, People v. Núñez. The New York Times reports:
The California Supreme Court is currently reviewing a case in which a juvenile defendant received a sentence of 175 years, which the state attorney general insisted “does not foreclose the possibility that he may one day be eligible for parole.”
The absurdly high sentence is an attempt, of course, to bypass the Supreme Court's decision in Graham v. Florida, which declared life without parole unconstitutional for juveniles for any offense other than homicide.
The Appellate Court in Núñez wrote:
Here, we explain again that juveniles who commit nonhomicide offenses do not share identical culpability with adult offenders who receive LWOP sentences for the same offenses. (Nuñez, supra, 173 Cal.App.4th at p. 726 [“Age . . . matters” and “Youth is generally relevant to culpability”].) The United States Supreme Court recently determined the immature and potentially malleable nature of juveniles precludes a judgment at the outset that a nonhomicide juvenile offender will never be fit to reenter society. (Graham v. Florida (2010) __ U.S. __; 130 S.Ct. 2011 (Graham).) Graham invalidated a de facto sentence of life without the possibility of parole as a sentencing option for juveniles who do not kill. (Id. at p. 2030.) As a practical matter, the consecutive life sentences the trial court imposed here denied Nuñez any possibility of receiving a parole hearing. We perceive no sound basis to distinguish Graham’s reasoning where a term of years beyond the juvenile’s life expectancy is tantamount to an LWOP term.
Beyond the obvious facetiousness in remarking that one might be eligible for parole after 175 years, there's a deeper issue here, which has to do with the sort of creative "tricksterism" on the part of the prosecution that results in asking the court for this sort of sentence. In a really great law review article, Carrie Menkel-Meadow argues that the abundant representation of lawyers in popular culture has created multiple models of viewing their ethics. Here's the table she uses to analyze the various sources based on their treatment of lawyers' acts or character:
It strikes me that a good way to transcend the positive/negative distinction, for both professional acts and professional character traits, could be examining the extent to which the lawyer deviates from an uninspired, technical adherence to the obvious black letter law. The acts in question could be dragging unexpected parties into the trial, making an unexpected argument, or engaging in some unusual sleuthing maneuver. Let's call the character trait that informs such acts, for the sake of discussion, creativity.
I haven't empirically tested it, but my sense is that we see a lot more portrayals of creative defense attorneys than prosecutors. We sort of expect defense attorneys to be represented as using legal loopholes for "getting their clients off on a technicality." Portrayals of creative prosecutors, who come up with original arguments and use legal loopholes for conviction and harsh sentencing, are few and far between, but they do exist. One notable example that comes to mind is Kelly McGillis' portrayal of the prosecutor in The Accused, where following an unsuccessful rape prosecution she tries - and succeeds in - convicting the spectators and bystanders. Another one is Ryan Gosling's portrayal of the prosecutor in Fracture, who is involved in a battle of wits with the defendant. Both of those portrayals evoke a great deal of sympathy for the prosecutors, who are using the tools that they have to put despicable and dangerous people behind bars. And it is this sort of positive representation of prosecutorial creativity that I have a serious problem with.
There is no absolute symmetry in the criminal process. Defense attorneys represent the client (setting aside for a minute the problematic perception of public defense) but prosecutors represent the state.This distinction has important implications: Prosecutors have an array of police and state power tools at their disposal. Since most defendants are not like the Anthony Hopkins character, but disproportionately poor people of color, prosecutors wield even more power, and resorting to trickery and creativity to "nail" someone strikes me as cynical abuse of authority. Arguing that "well, theoretically this kid could live to the ripe age of 200, in which case he could potentially come up for parole" reads as if the prosecution is smirking. And smirking has no room in representation of the State.
And I haven't even started on the trial court that accepted this sort of argument. What could the judge possibly be thinking? Hurray, I'm so smart that I managed to bypass Graham and subvert the Supreme Court?
We'll be closely following this case and hoping that the CA Supreme Court reaches the right decision. Because there should be no smirking when sentencing a juvenile offender, no matter how heinous his act, to decades in prison. It is a tragedy, and creative maneuvering has no room in a tragedy.