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?”