Thread by @ScottHech

Chaperoning school group today to bail hearings. Very mixed feelings. But knew they’d be going anyway & tours usually led by prosecutors or court officers. Thought better to give them context than what they’d get otherwise: “Criminals,” “Jail,” “This is all okay.” Agree/disagree?

All done. So happy I decided show these fifth graders (!) arraignments, but most importantly talk about the system more broadly. Turns out, they knew way more & were already thinking way more critically about it than I could have possibly imagined. Here's a rundown of experience:

When I first saw them, they looked *so* young. Immediately checked myself & considered cancelling going to court. Way too much to process. Would maybe scare them. Decided to play it by ear based on our preview discussion. Started: "Anyone know what a public defender is?" Hands.

"A public defender is a lawyer who helps people who cant pay for one" "Because it's not fair for someone to face jail if they don't get help." "It's in the Constitution." "If you don't have someone to help you, you might be hurt more." Okay...Off to a surprisingly strong start.

Asked: "When you think of court, what do you see?" Answers: "Trial." "A big room." "A jury." "A judge." "Wooden benches." "What you see on TV." I thanked for helping set up response: "Other than wooden benches, nothing like that. 99% cases never make it to trial. Why you think?"

They thought. Then 1 of quieter kids said: "Bc something happens before to stop them." Great answer. Talked briefly re: pretrial detention & how many are jailed before trial. Girl to right: "What about presumption of innocence?" WHAT!? Looked at teachers. They smiled & shrugged.

Responded: "Exactly. Even worse, only people locked up pretrial by & large are those too poor to pay to get out." Another student, "Like bail." These kids were definitely coming w/ me to court. I asked: "What would you want more than anything if you were in jail?" A: "Go home."

Told them bc theres nothing more powerful than wanting to go home, majority jailed plead guilty, whether or not they are, or the police did something bad. Told them pretrial detention is just one of many things pretrial that make people plead guilty. Trials are mostly gone.

Explained that this plea process means that the very first day of the case--arraignments where we were about to go--is the most important part of the case. Not trials. Where nobody knows much yet. But the most important decisions are made that can determine all future outcomes.

I then prepared them a bit for what they were about to see. Told them they will be sitting among family members & loved ones of those who were just arrested. Terrified of what could happen. Asked them to remember that handcuffs don't mean they did anything wrong or they're "bad."

I prepared them to expect that most people in handcuffs would be Black or Latinx. Asked: "Do you think that means they just commit more crimes?" Strong head shakes "No." What does it mean? "They just get arrested more." Exactly: They are disproportionately targeted.

Ensured they understood what those arrested had already been thru before brought into court. In case they seemed upset, or agitated. Arrest, cuffs, precinct, fingerprints, held for hours, brought to central bookings, no sleep, cells, 24 hours. Fear. Anger. They're humans.

Also made clear they knew that court we were going in would mostly have felonies today. Not representative. Vast majority of "crimes" are misdemeanors, nonviolent, & "violent" felonies that arent even violent. Same girl as before: "And they're all presumed innocent anyway." YES!

Before we left one of boys brought up Rikers & how every one was kept in "pods" based upon the seriousness of their offense. I praised him for thinking rationally re: how jail (if there was going to jail) should be designed. But how theres unfortunately little to no separation.

And we were off to court. They were so eager. Went through security. Number of them commented on how "serious" things started to feel once we got inside. Another student--looking around at who was walking around hallways--came up and said, "The people here *are* all Black."

We walked into the courtroom. They all sat in back row. Asked the judge to come to speak to them. She was nice. Said normal judge things: "Welcome." "Who wants to be a lawyer?" "Work hard." Answered few questions: "Hardest trial?" "How did you get to be a judge?" Then went back.

Nearly right away, first case called. A young, scared Asian woman. Charged w/ prostitution. Prosecutor offered an ACD (stay out of trouble for 6 mos + case dismissed). Colleague asked for immediate dismissal/sealing bc of "collateral consequences" (read: immigration issues). "No"

Colleague persisted: "Judge you have authority to do this & she has no record & having an open case for 6 mos could be really damaging." Prosecution said they took "No position," which really means they're fine w/ it. Judge said, "No. Does she still want ACD?" "Yes, your honor."

The young woman was speaking thru a Mandarin interpreter. She started walking back toward the jail cells. Officers turned her around & pointed to freedom. Head down she walked out of court. Turned around to students. Riveted. I pointed out a couple of things from those 2 minutes:

1. Notice how she had her retinas scanned before she was brought up? State surveillance. 2. Most charged w/ prostitution are sex workers who want agency or human trafficking victims. Why arrest/prosecute at all? 3. 9/10 judges would have granted dismissal. Justice is arbitrary.

I know theyre 5th graders. But responses & thoughtfulness earlier earned real talk on difficult subjects. They got it. "Jail doesn't help people that are already victims." "But she [the judge] seemed so nice earlier." "What happens now?" Hands raising right & left. But next case:

Man charged w/ assault in second degree. Prosecution consented to his release. Lessons: *Prosecutors have a lot of power.* When they decide to let someone to go home, judge will release them. Doesn't matter the charges. They could stop pretrial detention today if they wanted to.

Hand raised. Girl who hadnt spoken. "The ppl really seem to like their public defenders." Told them how impt it is to build trust w/ ppl you represent & vice-versa. How everyone has so much in common w/ each other even if we couldnt seem more different. How difficult it often is.

Young girl lead out next. Robbery charge for stealing jewelry from cousin during fight. Prosecution again consents to release (good on them). But requests, as always, a stay away order. Colleague raises issues that may arise at family functions. Judge allows incidental contact.

Lessons: (1) Again, power of prosecutors to limit jail (good). (2) Prosecutors power to not charge the highest possible charge as they did here knowing that it really is no more than a family fight (bad). (3) The impact that orders of protection can have, esp on family members.

Last case students saw: Charge of 1st degree robbery. Claim: Client pretended to have firearm in pocket. Stole chain & money from someone in store. Prosecution requested $25k bail. A woman in the audience cried out at the amount. The students all looked. Whispers: "It's his mom."

Colleague first castigated prosecution for bringing up prior cases he brought up should have been sealed bc of his age at the time. Note: Youthful & juvenile offender records supposed to be sealed, but still show up on RAP sheets. Then turned to facts:

He was just outside & not involved in anything. Thats what put him in police radar for arrest & later lineup. Our office went down to precinct w/ him (already rep him on open lowlevel case thatll be dismissed). Requested fair lineup. Colleague had photo of it. It. Was. Not. Fair.

Colleague showed photo to judge. Started to describe: "He was only skinny, light-skinned black man. To his right is a hefty white man." Judge cut her off. "This isn't a trial or suppression hearing." "True, but strength of case is relevant to your bail decision." (Shes right).

Colleague proceeded: In close touch with our office. Mother in audience. Can't possibly afford anything close to $50k (note: Mistake above in thread. Prosecution asked for $50k). Making all current court appearances. Case will go nowhere. "Please release him." Bail set: $25k.

Mom started crying. Walked out. Young man guided back toward the cells behind courtroom. Heard whispers: "He's going to jail." "Rikers Island." Looked & the students were bothered. One girl whispered a question: "If he needed a public defender, how could he afford $25k?" Bingo.

Walked out of court, past mom crying w/ his attorney, & sat down on benches. Answered the girl: "He can't afford $25k. Most of my clients can't afford $100." Explained bail was supposed to be incentive. Law only allows bail enough to ensure return to court. They were thinking.

"Then why did she set bail higher than he could pay if she knew he couldn't afford it?" Explained judges are human. Humans driven by fear. Nothing bad could happen to her if he goes to jail. But if she did right, legal thing, she could lose her job if anything bad happened.

Another girl: "But if law says you cant do bail higher than they can afford, didn't she just commit a crime?" "No, but she violated state law & Constitution." A boy: "What happens to her then?" Me: "We appeal arguing she 'abused her discretion.' They usually get denied." "Why?"

"Because the judges reviewing bail decisions work in the same courts & know her. They work together. How do you think she'd feel if one of our colleagues said she "abused her discretion." "Really bad." "Remember: Again, all judges are human. All too often, feelings trump law."

Students had hard time wrapping their heads around how judge could just do that & get away w/ it. It's hard, frankly, for me to wrap my head around. Explained it's also about incentives. If we celebrate mercy, leniency, rationality more across system, we'd all be better off.

I mentioned how I never could be a criminal court judge. How I'd never want to be empowered to jail someone. One of the smallest of the kids said: "Seeing all that *made me want to be a criminal court judge. So that I could have the power to do the right thing." Praised him.

There were a number of other questions. Then time was up. Walked outside. Took a photo in front of the courthouse. And mutual thank yous. I told them how incredibly impressed I was with them, & told them they all give me hope for the future of criminal "justice." They really do.