How I Became “Radicalized” Against the Criminal Justice System

During my third year of law school, one of my courses was a criminal defense clinic, where I represented misdemeanor defendants in Bronx Criminal Court under a student practice order under the supervision of our professor and an incredible organization called the Bronx Defenders. Before this clinic, I had always been under the impression that most police were good, some police were bad, but mostly if you leave them alone and mind your own business, nothing bad would happen to you. And in my personal experience, I was right. I was/am an educated white guy, the product of an upper middle class upbringing, and the child of a municipal judge. Other than a couple of traffic stops and being gently searched because a fight broke out at a party I was attending, I’ve had no serious problems with police.

I became what many people would call “radicalized” against the criminal justice system while working in this clinic. It’s a testament to just exactly how far off the rails our system has gone that my beliefs are considered radical at all, since I believe in things like robust 4th Amendment protections, where searches and seizures are done pursuant to a warrant or actual probable cause and/or reasonable suspicion based on articulable facts; that those who are entrusted with the awesome responsibility of enforcing our laws should be accountable to those same laws, that there should be consequences for failing to do so; that police should be trained to use violence only as a last resort and to the least lethal extent possible given the circumstance; and that District Attorneys have a responsibility to promote justice, not win cases. These are considered radical beliefs by many people.

Over the next few weeks, I’ll share some stories about that time in the clinic. These stories are based on notes, memoranda, and filings that I saved from that time, as well as my own recollection. It’s my hope that these stories will shed some light on how upside down our criminal justice system has become and how these issues feed into the deep anger that marginalized communities feel towards the police and the criminal justice system. Names and other identifying information have been changed to protect the privacy of the people involved.

My first day in court, I was in the arraignment part, where defendants are brought before judges for the first time after being arrested. It was the Tuesday after Labor Day, 2009, and because it was after a holiday weekend, the holding cells were way overfilled and the part was much busier than usual. Some people had been locked up since the previous Thursday night despite Supreme Court precedent that defendants must make an initial appearance before a judge within 48 hours of arrest. And since this was holding, there was no shower, no change of clothes, no beds. Just an occasional sandwich and a toilet that had be used in front of dozens of other people if you couldn’t hold it in.

Our professor gathered us and gave us a stack of folders to peruse. The first one I saw had a young man accused of trespassing (I’ll go into more about trespassing in NYC another day because it’s a deeply fucked up issue). The criminal complaint stated that he was caught trespassing “on the corner of East 180th Street and Grand Concourse.” You don’t need to be Hulk Hogan’s learned counsel to realize that there’s no way in hell that someone could trespass on a public street corner. Trespassing against property involves being somewhere where the defendant had no right to be and everyone has the right to be on a street corner. One of my classmates made this argument, and the judge dismissed the charge.

Anyone familiar with the criminal justice system however, is probably chomping at the bit because that complaint should never have gotten in front of a judge in the first place. The arresting officer had to sit with an assistant district attorney and draft the complaint. Criminal complaints must allege non-hearsay factual assertions that if true, meet every element of the crime accused. Since one cannot trespass on a public way, the ADA (whose job it is to make sure that every complaint meets this standard) signed off on a criminal complaint that alleged no criminal activity. Think about that for a second because it’s important. That police officer signed a document under penalty of perjury that criminal conduct had occurred where it was plainly obvious from the text of that document that no criminal conduct had occurred. The officer blatantly perjured himself and the District Attorney’s office not only condoned it, but vigorously pursued the charge against the defendant.

No discipline was handed out to the arresting officer or the ADA who drafted the complaint (and even continued to argue that the charge should not be dismissed despite the fact that they didn’t even allege criminal activity). Even though the judge dismissed the charge, the young man had been handcuffed for several hours while riding around in a police van until it was filled with “suspects”, and then taken to holding, where he spent three days in jail for nothing. To top it off, it is nearly impossible to successfully sue the police department or district attorney for false arrest, false imprisonment, malicious prosecution, etc. if the charges are dismissed at arraignment. There is no recourse to this conduct. These types of interactions with police and with the criminal justice system are extraordinarily commonplace and they breed resentment.