We’re addicted to jail

Deandre Somerville, a 21-year old who works for the city of West Palm Beach Parks and Recreation Department, is — by all accounts — a good person. He lives with his grandparents so he can help care for his grandfather, who recently had surgery. He has no prior criminal history and had never even been inside of a courtroom before being called to serve on a civil jury.

He was selected and told to appear the following day, but he overslept by several hours and missed court. That delayed the proceedings for about 45 minutes. For oversleeping and not calling the court, the judge, a former federal and state prosecutor, issued an arrest warrant and sentenced Deandre to 10 days in state jail following by a year of probation and 150 hours of community service.

After a swell of criticism for this absurdly high sentence, the judge last Friday reduced the community service and probation to 3 months and 30 hours (Deandre already had served his jail term). He also ordered Deandre to speak every week to potential jurors on the importance of jury duty. And then on Monday, the judge completely rescinded the probation and community service.

Of course, it was too late to do anything about the 10 days in jail.

Deandre’s case is shocking and unjust. But it shouldn’t be surprising. Our country has a serious addiction to jail time.

We issue jail sentences like candy, to address every known problem that we have. Drug problem — jail.  Using your family member’s address to get your child into a better school — jail. Paying college athletes — jail. The United States jails more people than any other country in the world. We have higher incarceration rates than Russia, Iran, and Iraq — by a lot. We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States. 82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail. This is not how it should be.

The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?

One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary. As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one). A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government. Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan. Ohio State fans would never tolerate it. And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail. They have never visited a client in jail. They have never explained to a family — while the family cried — that their loved one is going to be taken from them. As prosecutors, they have only put a lot of people in jail. And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.

We have many problems in this great country, and our addiction to jail is high on the list.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.