Larry Craig and Due Process

It's reported that Idaho Senator Larry Craig has hired a high powered legal team to try to overturn his guilty plea for soliciting an undercover officer in a Minneapolis airport bathroom, though his chances of succeeding are apparently slim. It appears he'll challenge his arrest, but I wonder if he'll also challenge the circumstances of his plea.

In some states, people can resolve criminal cases without showing up in court at all (which is what Sen. Craig did). Sometimes this is a way to avoid the embarrassment of a public court appearance. The practice raises some interesting questions about due process. Read More.

Sen. Craig entered a guilty plea by mail, without an appearance before a judge or the benefit of counsel, to a misdemeanor charge of disorderly conduct and a sentence of a fine and one year unsupervised probation. You can view a copy of the two-page plea agreement that he signed, courtesy of the Associated Press. To my knowledge, no comparable arrangement exists in New York City - it's not possible to enter such a plea without appearing in person before a judge and usually being represented by counsel. I wonder which process Sen. Craig would have preferred?

Of course, the senator is far from a "typical" defendant in a minor criminal case. I wonder what kind of court process most people would prefer? Some of our clients are frustrated and confused by by their experience in court, unsure about what they've pled guilty to, and angry about the circumstances of their arrest. They're usually very vocal, and we take the time to listen to them and answer their questions. The emerging theory of procedural justice states that transparency, explanations of how decisions are made, and the chance for defendants to express "their side of the story" all increase perceived legitimacy of the process and the likelihood that defendants will comply.

However, Malcolm Feeley presents a different view in The Process is the Punishment. He argues that for the average criminal defendant, the perceived costs of a criminal conviction don't seem as serious as the collateral costs of a court case: lost days of work and missed appointments, the cost of hiring a lawyer, childcare, and in some cases the possibility of pre-trial detention. Feeley proposes the possibility that most defendants facing minor criminal charges would prefer a traffic court-like process that sacrifices due process for efficiency. He suggests that even though some defendants may have plausible alibis or reasonable basis for challenging the evidence against them, they prefer a system that might permit more errors but minimizes their appearances in court and involvement with the system.

I wonder how defendants, judges and attorneys in the Bronx and elsewhere view this question. Is there a point where the collateral costs of too much due process outweigh the benefits for many defendants? Is there minimum amount of process without which essential rights are not protected and checks on the police to prevent false arrests are not in place? And where does Bronx Community Solutions fit in? We try to make our procedures simple and efficient for our clients. At the same time, we weigh the benefit of a more meaningful sentence to the defendant, the courts, and the community, and the importance of ensuring and verifying compliance with court mandates.