Journal of Leadership and the Law

Student Notes

Elon Law student John BoschiniTreatment and Rehabilitation for Youth & the Homeless

John Boschini L'15

The American judicial system is an adversarial system. The theory is that if both sides are represented by advocates who vigorously argue in their side’s best interest a neutral finder of fact, either a judge or a jury will be able to come to the correct decision. An adversarial system sounds wonderful in theory and works well when both sides have counsel that will put in the needed time to put for their side’s best argument. However, in the nation’s district courts time, budget and staffing constraints have made such a system woefully inadequate and demand an overhaul in how misdemeanor crimes are prosecuted, defended and punished.

I spent the summer between my 1L and 2L year working in District Court in Guilford County, NC. On any given day, a single courtroom would have 150-800 cases on the docket. Many of them were continued to a later date, only to be continued again, causing more clutter as cases dragged on for months or even years without any step towards resolution. This wastes both the defendant’s and the court’s time and allows witnesses and evidence to elapse.  Out of the hundreds of cases on that day only one or two were set for trial. Instead, the vast majority of cases ended in a guilty plea or a dismissal because a prosecuting witness did not show up to court. Many defendants’ only interactions with lawyers was for a few minutes as they worked out a plea with the Assistant District Attorneys and those fortunate enough to be represented by counsel, either private or public, had less than an hour of work done on their case. In the few cases that do go to trial, a judge is the finder of fact not a jury. A trial by jury must be demanded on appeal, an option undesirable for most defendants whose punishment is likely no more than probation or a jail sentence under 30 days.

There is a downside to all of this efficiency (aside from basic due process concerns and potentially innocent defendants being coerced into taking a plea). Most of the crimes prosecuted in district courts are for misdemeanor larcenies, driving while license revoked, minor drug offenses and non-serious violent crimes. Some first-time offenders, at the sole discretion of the prosecutor and judge, may be able to complete a program to avoid a criminal record. However, this consists of attending a class and doing five hours of community service. This is a good start but does not go nearly far enough to address the root cause of the defendant’s criminal behavior.  What needs to occur is a seismic shift in how misdemeanor defendants are viewed by the criminal justice system in regards to two groups, the young and the homeless.

The first step is eliminating the view of the district attorney as the “opposition.” An assistant district attorney is a representative of the people and is tasked with executing an outcome that is in their best interest. It is in society’s best interest that defendants be given a sentence most likely to lower recidivism rates. This cannot be done if there is no communication between the State and the Defendant beyond discussing a plea deal. Guilford County has a number of good programs that try to treat the underlying causes of criminal behavior while simultaneously helping defendants avoid a criminal record. Programs include community service in lieu of probation or jail time, classes on drunk driving and substance abuse and mediation between feuding parties. These should be expanded, and a defendant’s ability to participate in them should not be left up to the discretion of the ADA. Currently, only first-time offenders are eligible for the various community service, drug treatment, and educational classes offered in exchange for the avoidance of a criminal record. This should change, at least for those under the age of 18.

Teenagers with a criminal record, even one absent of violent behavior, will face a severe disadvantage in college admissions and employment. These offenders are unlikely to face jail time and will instead be put on probation. Many of the positives offenders might receive from probation such as work placement, drug treatment and discipline are of little use later in life when work and academic opportunities are few and far between, thanks to a criminal record. This lack of opportunity makes serious and violent crimes more enticing, and the circle of crime, violence and poverty continues. It is unreasonable to believe that young people will not make mistakes more than once, and a two-strike rule harms both the criminals and society.

A similar approach should be taken to address the crime committed by the homeless population. Oftentimes, drugs or mental issues are the cause of their homelessness, and by extension their criminal behavior. Criminal records lengthen rapidly as addiction and mental disease go untreated and poverty worsens. Trespass and larceny become the only way to survive and violence soon follows. Probation, the normal punishment for misdemeanors, is virtually impossible because it requires a permanent address. Instead, homeless who commit misdemeanor offenses should receive the mental and substance abuse help they need. Most importantly, this includes the restoration of funding to state-run mental health services. The threat of criminal prosecution should continue to incentivize treatment, but neither the criminal justice system nor society’s interests are served when the homeless do not receive the help they so desperately need.

Renewing the focus of misdemeanor crimes away from punishment and towards treatment and rehabilitation will have long-term benefits for two of the most in-need subsets of the population.