Annual/Winter Meeting - January 2013

Opening Remarks by MACDL President Max D. Stern

How criminal practice has changed since Roger, Nancy and I started in this business.  No more potent reminder of that exists than the scandals that have unfolded in the last six months.

Aaron Swartz - the internet activist who was driven to despair, and ultimately suicide, by the enormity and cruelty of what he faced.  And the drug lab disaster where perhaps thousands of defendants served years of mandatory imprisonment premised solely on the findings of a dishonest chemist.

What links these scandals together is the power of the prosecutor in today's world - a power to threaten or, too often, dictate colossal sentences for minor crimes - and without any need to take more into account than what configuration of charges will produce the greatest sentence.  In so many areas of the criminal law, defense lawyers and judges have become little more than spectators in a Kabuki ritual in which all power resides in, and all key decisions are made by, the prosecutor.

Aaron Swartz was only the most apparent case - one that everyone could understand.  But it was not unique.  It was emblematic.

How many of us, watching a client marched away to serve an insanely excessive period of time, have found our role reduced to explaining to him, or his family, why we can do nothing, why we have no power, and not even an argument; why no one cares about proportionality, about mitigation, or rehabilitation, or redemption, or even what makes true sense for law enforcement - why his life is disposable, why his family's needs do not count, why mercy has disappeared from the sentencing lexicon.

These prosecutors are not mean or cruel by nature, most of them.  Rather, they are proof of Lord Acton's axiom that power corrupts, and absolute power corrupts absolutely.  They are on auto-pilot, doing what the system provides for them to do - they are advocates, not judges, and should not be charged with that role.

It is high time to rebalance the system.  I am actually optimistic that this will happen, provided we add our voices and our experiences, to the gathering movement for change.  States across the country are weaning themselves of mandatory minimums, reducing sentences and lowering prison populations.  History is moving in our direction.  I just hope it gets here before I finish.

Massachusetts Association of Criminal Defense Lawyers (MACDL)
321 Walnut St.
, Newton, MA 02460
E-mail address: datalelaw@gmail.com
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