by Michelle Kuo
Rob put a piece of paper in front of Patrick. Its litany of questions included: Do you fully understand that you have a constitutional right to a trial by jury on the charges against you and that by entering a plea of guilty to the charges you are waiving your constitutional right to an appeal of issues involved in the charges placed against you? Have you discussed all possible defenses with your lawyer?
Rob read these aloud.
I could tell Patrick was not listening or reading. Usually he used his index or pinkie finger to follow along. But the language was too technical. It wasn’t meant to be read by an ordinary person. This was a language spoken primarily by those who paid to learn it.
Patrick waited politely as Rob read, knowing he couldn’t sign until Rob reached the end.
The last line:
I HAVE READ EVERYTHING ON THIS PAPER. I UNDERSTAND WHAT IS BEING TOLD TO ME, WHAT MY RIGHTS ARE AND THE QUESTIONS THAT HAVE BEEN ASKED. MY ANSWER IS “YES” TO ALL 7 QUESTIONS, I KNOW WHAT I AM DOING AND AM VOLUNTARILY PLEADING GUILTY.
Now Patrick turned to me. “Ms. Kuo,” he said urgently, “you sure they know I already served sixteen months?”
“It’s automatic,” I said. “By law.”
“They gone forget; that how they is.” I knew his suspicion was justified; you never knew in Helena. “You gone make sure I get credit for serving the sixteen months? Don’t forget.”
Rob handed him the pen and Patrick took it. Patrick signed his name.
Then Rob shuffled the paper into a folder, shook everyone’s hand, and left. After that day, none of us spoke to him again.
—
MURDER IS DISTINCT from manslaughter because the murderer has a “guilty mind.” The guilty mind deliberates and plans. The more thinking one does, the more culpable one is. A gun is purchased; an alibi is arranged; the killing is plotted.
What is the opposite of the guilty-mind charge? A situation driven primarily by chance. A crime with a plausible alternate reality. Manslaughter is a death that occurs nearly accidentally. Manslaughter is killing without intent to kill.
Manslaughter presents a meditation on chance. If the timing and day had been different. If certain people hadn’t crossed paths. If X’s mother hadn’t asked him to look for Z, his younger sister. If X’s mother felt that Z was safe in the hands of neighbors. If Z, a minor enrolled in special-education classes, hadn’t been at a party where alcohol was being served and older men were present.
If a particular kind of ethics did not rule X’s neighborhood, so that he didn’t feel he had to win fights, or to fight at all. If someone had called the police; if someone had reason to believe the police would show up. If the knife had nicked rather than sliced through the vital organ. If the knife had nicked a place below a vital organ, missing it: the spleen but not the ventricle. If the ambulance had not been slow.
But because X and Y crossed paths, because Y was drunk and walking Z home, because X told Y to get off the porch, because X had a knife—what was a boys’ fight is now a classifiable legal entity. Y is now a person who has completed the process of dying—i.e., the decedent.
Misfortune can present people with moral tests they simply cannot pass, writes philosopher Nir Eisikovits. The basic premise of criminal law is that you are guilty only if you’re responsible. Yet factors that contribute to the crime are pure accident—here, the misfortune of being born in Helena, on the intersection of Garland and 4th. Those who do not grow up here do not get presented with certain tests. Patrick was tested, and he failed.
—
PATRICK TURNED TO Kiera. “What time you got work?”
“Two. I got to change.”
He looked sorry. He didn’t want her to miss work because of him. “Y’all can go home,” he said. “Thanks for bringing those clothes.” Then, as if he couldn’t help himself, he added, “You can tell Daddy I’m mad at him. For not coming.”
Everybody got quiet.
“He watching the kids,” Kiera said finally. Then she changed the subject. “I just mad you got those flip-flops. You sure you don’t want me to get you a nice pair of shoes?”
Patrick repeated, “Y’all can go home.”
But nobody moved.
“I want to know what’s gone happen,” Kiera said.
“Y’all know what’s gone happen.”
At this, even Kiera fell silent. She went outside to smoke a cigarette and then came back.
—
THE TRIAL HAS disappeared from courtrooms, existing mostly on television. The jury, inherited from the English legal system, was uniquely American by its aspiration to be made of the defendant’s “neighbors and peers,” the community that bore the cost of the crime. In the 1700s and early 1800s, American juries were entrusted not merely with making a legal evaluation but a moral decision. The statistics were telling: Overwhelmingly, in murder cases, juries refused to convict. At the turn of the nineteenth century, more than three-quarters of Chicago homicides, for instance, led to no punishment. As criminal-law professor William Stuntz writes, One historian’s study of Chicago homicide cases in that period reads like a compendium of bar fights that got out of hand, nearly all of which took place in front of witnesses and most of which ended in defense victories.
This bygone, more democratic incarnation of criminal justice applied only to the urban North. Lynching—that ultimate rejection of legal procedure, as Stuntz puts it—was the most prevalent form of “justice” in the Delta. Lynchings and mob violence were sanctioned, and often abetted, by state power. During the Elaine massacre, the local police, with the aid of federal troops, rounded up over a thousand black people. At the Helena jail, the police beat, tortured, and electrocuted them. “The Negroes were whipped unmercifully. Every time the strap was applied it would bring blood,” a white police officer later testified. “We whipped them to make them tell what we wanted them to tell. We wanted them to tell facts that would convict themselves and others under arrest.” He also stated that at least one of the white men who had died might, in fact, have been accidentally killed by other whites: He recalled hearing one of the men in his posse shout, “Look out! We are shooting our own men!”
Eventually, based on confessions that were mostly coerced, the prosecutors indicted 122 black people and charged 73 for first-degree murder. Twelve men were put on death row. In each of these twelve trials, the all-white jury returned a verdict in less than ten minutes as armed whites surrounded the courthouse. The Supreme Court reversed six of these convictions. But locally, there was little public reckoning. Over four decades after the massacre, two residents of Phillips County would write an article that set out, as they explained, to list some “facts.” All those accused of complicity in the Elaine riot were given fair trials, wrote the local historians. No mob violence was attempted….Phillips County had always, before this riot, and has since, enjoyed the reputation of having peaceful relations between the races. The account was printed in the Arkansas Historical Quarterly in 1961. Thirty-five years passed, and in 1996, the Phillips County Historical Quarterly printed the same article again.
Still, as barbaric as the history of criminal justice is in the South, the number of lynchings declined after the first two decades of the twentieth century: In 1900 there were, on average, one hundred lynchings a year. By the eve of Brown v. Board of Education, lynchings had essentially ended. Grassroots movements in the South—not federal intervention—from communist radicals to local NAACP branch members made the difference. They organized, they spoke out, they dramatically changed public consciousness, to the point where white Southern elites were embarrassed by lynchings. By the time of the Civil Rights Movement, new leaders such as King placed the burden of change on the federal government, demanding that it intervene in the Southern states on behalf of black people. And in many ways, these leaders succeeded: The Civil Rights Act of 1965 was a sweeping piece of legislation that dismantled the South’s Jim Crow laws.
But pinning one’s hopes on the federal government is danger
ous: What if the federal government turns on you? This was what happened after the passing of the Civil Rights Act. The hoped-for knight in shining armor instituted a series of measures targeted at the black poor. Policymakers began to distance themselves from the basic idea that poverty was a root cause of crime. Education, employment, and housing programs, although sometimes defended on their own terms, were increasingly framed as having nothing to do with lowering crime, writes the historian Elizabeth Hinton. Overt racism was less palatable, but “crime” became the strategic, and politically acceptable, way for politicians to make statements about race: Crime was, as it is today, a code word for what poor black people do.
The story of criminal justice, from the viewpoint of the rural South, is also one of Northern hypocrisy: Attacking the Jim Crow South had been the focus and fulcrum of the progressive moment in the 1950s and 1960s. Segregation was seen as a Southern problem, not a Northern one. Yet once massive numbers of black migrants from the South entered the Northerner’s backyard, and deindustrialization created a large jobless population in urban centers, punitive policies were devised and carried out. It was not just former segregationists who advocated for a war on crime, but rather a bipartisan consensus of policymakers, as Hinton writes, acting in closed circles or as part of a larger coalition. Federal agencies distributed millions of dollars to states, mandating them to control crime; state governments pursued convictions; the massive number of cases junked up the system, making the jury trial a pipe dream. Among these punitive policies were the long sentences for drug-related crimes that would incarcerate Patrick’s father and uncle. Mass incarceration is the most damaging manifestation of the backlash against the Civil Rights Movement, writes civil rights attorney and professor Michelle Alexander. It was out of these years that the plea bargain was born and bloomed.
Most public debate about the plea bargain has focused on urban areas. But its effect on the rural South was, and is, disastrous. Public defenders lack the most basic resources to investigate cases. Professional standards are lower; relationships between the state and defense are more informal and less tolerant of adversarial tactics. The shortage of lawyers in rural areas is as dramatic as the shortage of teachers. Young law graduates do not want to live here. Advocacy and social service programs—mental health, drug rehabilitation, reentry, basic legal aid—are nonexistent, so convicts are trapped in a punishing cycle of plea bargains, poverty, and incarceration.
In both the South and the North today, the plea bargain now dominates: It accounts for 98 percent of the criminal cases in the country. Much has been said about the plea bargain as an assault on justice. How can a person’s rights—to a fair trial, to liberty, to the presumption of innocence—be negotiated, bartered, haggled over, like something at a market? The plea said to Marcus’s family: Your case isn’t worth it to us. It said: This is clogging up our system; we’re trying to get rid of it. For Marcus’s family, a trial could have meant public vindication. Should a drunk person on the wrong porch get stabbed to death? Should he die because he walked a girl home?
Even as forms of justice have changed, one characteristic has remained the same: Crimes within all-black communities remain lowest on the priority list. Like many social disasters, crime afflicts African-Americans with a special vengeance, writes law professor Randall Kennedy, for they are more likely to be raped, robbed, assaulted, and murdered than their white counterparts. In the Delta, this is especially true. The Delta, wrote one progressive Southern newspaper editor in the early 1900s, unfortunately, has never considered the killing of one negro by another seriously. Another editor wrote, in 1903: One nigger cuts another’s throat…and that is the last heard of it. It is like dog chewing on dog and the white people are not interested in the matter. Only another dead nigger—that’s all.
Studying homicides in Mississippi in 1933, Hortense Powdermaker argued that homicides among black people occurred in part because the police consistently turned a blind eye. The local officials had, in turn, taken their cue from other citizens in power: Planters regularly bailed out tenants who had broken the law, even those who committed violent crimes. Black people were induced to take the law into his own hands….Since he can hope for no justice and no defense from legal institutions, he must settle his own difficulties, and often he knows only one way.
A trial implies a public reckoning; it is meant to be an effort toward a shared meaning of what happened on a night that changed everything. Yet in the haphazard administration of the plea, the justice system signals that the case’s meaning has already been decided. A fight happened in an all-black neighborhood, between two undesirables. As was true for more than a hundred years, killings of black people by black people are considered a routine spectacle, at once invisible and self-evident.
—
“PATRICK BROWNING,” THE judge called.
Patrick stood. His hands leapt to the waist of his pants to pull them up, forgetting that he was wearing a clean pair of khakis that fit properly.
Nearby, Mary began to rock back and forth.
Patrick now stood in front of the judge. He looked alone up there, like a diver on a high board. The prosecutor and defender sat at their tables, far away, like spectators.
As for the three of us, we saw only his back and his hands, which he had clasped behind him. An observer at the rear of the courtroom might think Patrick was handcuffed; in fact, he was trying to be courteous.
Only the judge had a square view of Patrick’s face, but his head was bent toward his papers.
Finally he spoke, without looking up.
“For the record, are you Patrick Browning?”
We heard no sound. Beside me, Mary began to heave. Her legs were set several feet apart, left hand on left knee, right hand on right.
“You’ll have to speak up,” the judge said.
Patrick must have said something, because now the judge had gone to his next question: “How old are you?”
Again silence.
The judge repeated, “You’ll have to speak up. You have a quiet voice.”
I leaned forward and so did Kiera.
Finally a sound, very low.
“Twenty, sir.”
“How far did you get in school?”
“Tenth grade, sir.”
“Do you understand you’re being charged for a Class D felony?”
“Yes, sir.”
Patrick’s mother took her hands off her knees and drew them up to clutch her chest.
Rob said, “For the record, he’s served five hundred six days.”
“Counsel, do you agree?”
The judge turned to look at the prosecutor.
“I haven’t made any calculation. But, yes”—here he appeared to look at the ceiling, calculating—“I agree.”
The judge commenced a now-familiar torrent of questions, his head still down. He read at a rapid-fire pace, scarcely waiting for the answer. Among the questions:
“Do you fully understand that you have a constitutional right to a trial by jury?”
“Yes, sir.”
“Do you fully understand that by entering a plea of guilty to the charges you are waiving your constitutional right to appeal of issues in the charges against you?”
“Yes, sir.”
“Are you entering your plea of guilty of your own free will without any promises or threats?”
“Yes, sir.”
The judge wrapped up the questions and slapped the gavel.
It was done. Patrick had been convicted. Now he had a violent felony on his record, which could not be erased.
Near me, rustling sounds—Kiera was gathering her things. We nodded at each other and she hurried out, late to work.
Already the next inmate had shuffled to the center of the courtroom, the same one who met his lawyer the day before, having likely waited months for that single exchange. Yesterday I had taken an interest in him. Now I turned my eyes away, focusing my attention on the departing figure of Patrick, as if my disregard
for the nameless inmate was justified by my loyalty to Patrick. Patrick needed my partiality.
Patrick had returned to the row with the others, his face again hidden—he was looking down.
The judge was back at the questions. How old are you? How far did you get in school?
Beside me, Mary’s eyes were closed and her hands were now clenched in a single fist. Possibly she was praying, unaware that the ordeal was already over.
—
I WENT TO see Patrick after he took the plea.
He handed me his notebook—he’d done his homework.
It was almost like any other day, but we knew it wasn’t. So I didn’t touch the notebook.
Moments earlier I’d called a friend from law school. “Congratulations,” he had said; three to ten years for manslaughter was “a good deal.” When I paused, he added impatiently, “For God sakes, he killed somebody.”
My friend was trying to shock me out of my unhappiness and in this way comfort me.
“Patrick can be out by the time he’s twenty-five,” he continued. “And then he can start all over.”
It was true, as my friend suggested, that I had lost all perspective: A short sentence is better than a longer one. But it didn’t feel good. When Patrick got out, he would have a criminal record. He would be marked as a felon; he’d have trouble getting a job; he would look at himself differently for the rest of his life. He could not start over as if he’d woken up from a nightmare and taken a shower.
“Hey,” I said to Patrick, “how’d you feel up there?”
He reached down to touch the flap of his shoe.
“Not knowing what to say,” he said finally. “Only knowing”—he swallowed—“only knowing it gonna be guilty.”
“Do you feel guilty?”