I read a pretty disturbing article in the Dallas Morning News yesterday. The article is entitled, "Dallas County commissioners ask judges to generate more revenue from courts"
The crux of the article is that Dallas County wants more money, and they believe that the judges should be the ones generating this money through those convicted of crimes.
There are some major problems with County Commissioners trying to set fines in criminal cases.
What is a reasonable punishment? What is a reasonable fine?
Commissioners have no clue what the charges are in individual crimes, much less, what the social-economic status of those accused are. These are questions most often answered through juries and negotiated pleas.
The article (and commissioners) has some major fallacies in it as well:
"Judges have discretion over how much in fines to assess."
WRONG. It is quite rare that the judge "decides" how much in fines to assess.
Plea Bargaining — 90+ percent of cases are handled through plea bargaining. These are negotiated pleas between the district attorney’s office, and the person accused (or their attorney). The judge does not take part in this process. Once an acceptable plea is negotiated, the plea is entered (sometimes in front of the judge, and sometimes in a magistrate’s court). Technically, the judge can reject the plea bargain, but it is rare and would cause enormous problems. Especially considering the judge does not know anything about the facts of the case.
Trial — In a significantly smaller portion of cases filed, a trial will occur. If no negotiated plea is struck, a trial will take place. Most trials are jury trials. In a jury trial, the citizen accused has the right to choose if he wants the jury to assess punishment or the judge. If the jury assesses the punishment, they decide the fine — again, no judge involvement. If the judge assesses the punishment, they decide on the fine. So in that situation, they would have control.
However, I have often times had trials, and after the trial (if the client is found guilty), the State and I will negotiate a punishment. This situation brings us back to the plea bargaining process, and again, no judicial involvement.
"County officials are concerned that some judges are reducing fines for some defendants."
Possibly, but so what? I guess this begs the question of why do we punish? I studied criminology in school. Some of the common reasons included:
Punishment for Punishment Sake – The "just deserts" theory — do the crime, do the time. You messed up, so now you deserve a punishment
Deterrence (Specific and General) — Specific deterrence would be the situation where you punish to show that particular offender he should not do "it" again, or else he’s going to be punished. General deterrence is where you punish one person to show others in the community that they will be punished if they were to commit the same behavior.
To Gain Revenue? — I don’t remember learning about this one in school, but apparently it is a motive for the commissioners.
Higher fines often equal lesser punishments elsewhere.
Sometimes, as part of the plea bargain, a lower fine will be assessed in lieu of more XXX. (Community Service, drug classes to be taken, anger management, substance abuse treatment, etc.). This is usually done with the hopes of combating recidivism, or because the facts of the case dictate it.
Conversely, if fines were raised, this could be part of a negotiation which would lower the amount of classes, courses, substance abuse treatment etc. That can’t be the direction we want to head.
What I found most interesting, is that this is the exact type of behavior that was lambasted in the Dallas Morning News in the past regarding the Collin County District Attorney’s Office. I’ve been searching all over, but have been unable to find the article (or maybe opinion column?). Anyway, it was saying that people were getting unfairly punished if they did not have money to pay large fines while the "wealthy" who paid fines and restitution got more lenient treatment.
Oh yeah, of course, there is the threat that the judges better fine more people (or raise fines), or else they would cut " funding for some key programs such as the drug court, jail education and services for the homeless and mentally ill." Nice.