Fixing Legal Injustice in America by Andrea D. Lyon

Author:Andrea D. Lyon
Language: eng
Format: epub
Publisher: Rowman & Littlefield Publishers
Published: 2022-05-23T00:00:00+00:00

Thus an unusual coalition was formed: Victims’ rights groups, who wanted funding spent on their needs, not death penalty trials; fiscal conservatives, who didn’t think that Illinois got much “bang for its buck”; and those of us who wanted the death penalty gone for moral, religious, or philosophical reasons all joined together.3

It is easier to see the cost of “expensive” prosecutions like death penalty cases than it is to see where decisions by prosecutors, police, and, to some extent, judges, affect what we spend and where we spend it—and how shortsightedly we do both. While there are some cases where there is a public outcry to charge someone—anyone, really—and pressure to make the decision to charge and what to charge rapidly, that is not true with most cases. The default position of most prosecutors is to charge the largest possible number of charges, which often results in one act being charged under dozens of legal theories, as well as those that carry the most severe penalties, even if it is clear (or later becomes clear) that it is overcharging—deliberately charging multiple counts, with knowledge that most charges will fall away as proceedings begin. Overcharging is not specifically prohibited by lawyers’ rules of professional conduct and is is used as a technique for future plea bargaining.4

Overcharging forces individuals into pleas because the risk is just too great. If faced with the death penalty or life without parole, a plea to a lesser charge—and therefore, less time—becomes appealing. Even innocent people “choose” the plea, as the risk of going to trial is so astronomical.5

In many situations, there is a price paid by the system, the accused, and their families as a result of thoughtless overcharging and because of a powerful force called inertia. It is difficult for someone—especially someone with as much power as the prosecution—to reconsider a decision that has already been made, even if it was made without much thought.

Take the case of Tess Andrews (not her real name). It wasn’t hard to see Tess Andrews’s pain. It was, quite literally, stamped on her face. When the preliminary hearing judge assigned me to represent her, I stepped up to the bench and glanced at her. She was petite, maybe 5-foot-4, thin but solid, and looked to be in her fifties but was actually only forty-two. She was African American, with medium complexion and short hair that looked like she had been in jail for a while—which she had. But what caught my attention was her face: the round, one-inch burn on her left cheek, maybe two inches below her eye, that I would later learn happened when Carson Andrews (also not his real name) extinguished a cigar there; the scar above her right eyebrow that she told the hospital had come from a fall; and her uneven jaw, as most of her teeth on the left side had been knocked out from another “fall.”

Tess was charged with first-degree murder in Carson’s death. In Illinois, defendants can be so charged without

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