Repeat Offender – Community-Based Prosecution

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A few months ago, the Philadelphia Criminal Court System underwent a profound change.  The recently-elected Philadelphia District Attorney, Seth Williams, decided to move to a community-based prosecution model.  The theory is that the prosecutors will have a better understanding of particular areas of the city and the needs of those citizens.  The prosecutors will be able to identify individuals who engage in repeated criminal activity in the neighborhood.  The repeat offenders.

The idea reminded me of Malcolm Gladwell’s article, “Million-Dollar Murray” in which he writoffenders 2.jpges about power law distribution – where all the of activity is not in the middle, like a bell-curve, but to one extreme.  For those of you lucky enough to once own a turntable: think of the community as a vinyl record and the repeat offender as the scratch on your original copy of Exile on Main Street.  One scratch can ruin an entire record.

The prosecutors should be able to better identify the repeat offender by having frequent contact with the police officers that are making daily street arrests.  In the past, both prosecutors and defense lawyers relied heavily on arrest and conviction records to make plea offers and for sentencing-guideline math.  Under the new model, the conversation between prosecutor, defense counsel and the accused could be very different. 

For example, the case of Mick. The prosecutor is informed by the arresting officer that defendant Mick has two new charges of disorderly conduct and public drunkenness. Most of the time, the officer sees Mick on the corner panhandling.  On occasion, Mick is so intoxicated that an ambulance is called and the EMT takes a look at him and decides if emergency treatment is needed.  All of these contacts with Mick result with no arrest but a lot of resources have been devoted to him.  The new charges stem from an outburst when local restaurant owner, Keith, asked Mick to stop screaming profanities at his customers.  The case is scheduled for trial.  Keith and the arresting officer show up for trial prepared to testify. Mick fails to appear for trial and the judge issues an arrest warrant.  Mick has a long arrest record for smash-and-grab car thefts.  The prosecutor knows that neighborhood residents consider car break-ins the most common quality-of-life crimes.  The prosecutor now knows Mick.

The arresting officer sees Mick a few weeks later and makes the arrest.  New bail is set and Mick remains in custody.  A lawyer is assigned to his case since he cannot afford to retain 1_resized.jpgcounsel.   The prosecutor makes an offer which is higher than the standard sentencing guideline range.  The prosecution model has identified Mick as a repeat offender regardless of the number of actual convictions.

At that point, Mick’s lawyer, Virginia, realizes that this is not a standard case and must respond with particularity and vigor.  Virginia and Mick agree that Keith’s testimony will be enough for the prosecution to prove the elements of the charged offenses.  Virginia retains a certified alcohol treatment counselor.  Mick is evaluated and a detailed psychological profile is developed by the counselor.  Virginia goes back to the prosecutor with a comprehensive treatment plan that would result in Mick receiving a substantial downward departure from the sentencing guidelines.  The prosecutor reviews the file again and reads a comment from the arresting officer that Keith just wants to see Mick get some help for alcoholism.  Also, Virginia has called Keith and has the same information.

The community-based prosecution model may manage to play on Main Street.   

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About the Editor
Hayes Hunt concentrates his practice in the representation of individuals, corporations and executives in a wide variety of federal and state criminal law and regulatory enforcement matters as well as complex civil litigation. Hayes is a partner in the firm's Commercial Litigation Department as well as its Criminal Defense and Governmental Investigations Group.
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