On The Meaning Of Even One Day In Jail

A Lesson That I Learned During Law School & Again As An AUSA

In the wake of Donald Trump being convicted of 34 felony counts (you can read my FAQ here), one of the biggest open questions is whether he will be sentenced to incarceration of any length. I do not know whether or not DA Alvin Bragg will recommend incarceration. If DA Bragg recommends incarceration, I do not what length of sentence he will seek. The maximum total sentence is 4 years’ imprisonment.

If DA Bragg recommends incarceration,¹ I do not know whether Justice Juan Merchan will impose a jail/prison sentence.

• If Trump is sentenced to less than 1 year, he will be sent to “jail” in the custody of the New York City Department of Corrections. Ordinarily, that would mean Rikers, a facility so awful that it is being shut down by 2027.

• If Trump is sentenced to 1 year or more, he will be sent to “prison” in the custody of the New York State Department of Corrections. NYS has 44 facilities, ranging from maximum security (such as Attica) to minimum security.

The one thing that I do know is that spending any time in custody is an AWFUL, soul-sapping experience. I learned that lesson in two parts.

In the Winter of 1994, I Learned First Hand What It Was Like To Be Locked Up

When I was in my final year of law school, I volunteered for a program that allowed me to serve as an Assistant District Attorney in Lynn, Massachusetts. As made famous in Legally Blonde, Massachusetts law allows a law student to serve as an attorney, under the supervision of a member of the Bar. My supervisor was Ms. Laura Gold, the supervisory ADA in the Lynn District Court.

This was a real job in a real court. In 1994, Lynn was one of the most crime-ridden communities in Massachusetts. I was going to be handling both misdemeanors and felonies that were punishable by up to 5 years’ imprisonment (although the District Court could only impose a sentence of up to 2.5 years). I asked what case I could handle and was told that I could be assigned anything up to assault with a deadly weapon, but not assault and battery with a deadly weapon. When I asked what that meant, I was told, “If they shot at the victim and missed, you can get the case. If they shot at the victim and hit them, it goes to someone more senior.”

Before my supervisor would allow me (or my fellow law student ADA) to stand up and represent the Commonwealth of Massachusetts to enforce the criminal laws, she told me that I had to learn the consequences of the work I would be doing. She took me down to the basement of the courthouse, where there holding cells. She told the CO to put me in an empty cell and that she would be back in 1 hour to get me.

That hour was life-changing. Being incarcerated literally means being put in a cage. It means being stripped of humanity. It means losing control of the most basic aspects of life. There is no place to hide in a jail cell. There is nothing to do, except read, exercise or be stuck in your own thoughts. It is more lonely than I can describe.

In Winter 2002, I Learned What It Meant To Be Responsible For A Person Spending An Extra Day In Custody

In October 2001, I had the amazing privilege of starting my service as an Assistant United States Attorney for the District of New Jersey. I was living my lifelong dream of being a federal prosecutor.

By Winter 2002, I had a sole responsibility for a number of cases. In one of my cases, I had a defendant (I’ll call him Mr. Smith) who was held in custody after his initial appearance because Mr. Smith did not have a bail package to offer the court. Mr. Smith’s attorney reserved the right to have a renewed bail hearing, if Mr. Smith had a bail package to offer.

About 1 week after Mr. Smith was first put into custody, his attorney called me with a proposed bail package. It was acceptable to me (after checking with my direct supervisor), so I told the defense counsel that we had an agreement.

I now had two responsibilities as the AUSA. First, I had to get the new bail hearing scheduled in front of the Magistrate Judge who handled the initial appearance. Second, I had to contact the United States Marshals to have Mr. Smith taken from the Hudson County Jail, where he was being detained pre-trial, to the courthouse.

Although I scheduled the renewed bail hearing for the next day, I forgot to contact the Marshals before I left the office that day. The next morning, as soon as I got to the office, I realized I had made this mistake. I called the Marshalls, hoping that they could still include him in the group being transported to federal court that day.² I was told that they could not.

I called opposing counsel and the Magistrate Judge to tell them that the bail hearing needed to be rescheduled until the following day. When Mr. Smith’s lawyer asked why, I admitted that I had failed to ask the Marshalls to have him brought to court that day.

I was still at my desk at about 7 pm when one of the senior supervisors (now-Third Circuit Court of Appeals Judge Patty Schwartz) came by my office. She noted that I was one of the last people still in the office, which made me feel like I was being recognized as a hard worker. She was setting me up for the most brutal (and deserved) comeuppance of my life. In words that still echo:

Supervisor: You’re feeling pretty good about yourself? Well, I understand that you were supposed to have Mr. Smith produced for a bail hearing today.

Me: Yes.

Supervisor: And there was an agreed-upon bail package?

Me: Yes.

Supervisor: Why didn’t the bail hearing happen today?

Me: I forgot to ask the Marshals to produce him today, but I made certain that he will be produced tomorrow.

Supervisor: OK. I’m going to tell you to go home now. But, as you are walking out that door and heading to your own bed, just remember that Mr. Smith should be sleeping in his own bed tonight and the only reason that he is not is that you failed to do your job.

I never made that mistake again. I have regretted my mistake ever since. I still occasionally lose sleep over it, literally.

BOTTOM LINE

When people discuss whether the sentence that Donald Trump is going to receive (or after he receives it), I hope that they will be mindful of the tremendous impact of taking away any person’s liberty for even one day. There are some people whose crimes merit incarceration. I believe that Donald Trump is one of those people. But it is the measure of our humanity that we never lose sight of the moral consequences for us (as a society) to imprison a person.

I feel this way about the imprisonment of all defendants, not just the rich & powerful. In fact, I feel that one of the most awful things about our “carceral state” is that much of society thinks nothing of imposing months of incarceration on presumed innocent defendants who are awaiting trial.

1. If the prosecution does not recommend incarceration, I cannot imagine Justice Merchan imposing it.

2. A call to the Marshals before 8:30 am could sometimes get someone produced the same day.