Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
In the autumn of my first in year college, after the leaves had lost their brilliance, I decided to make a pilgrimage to a place that I had often thought of but had never seen — Bedford Falls, in upstate New York. I had come to New England from Chicago unprepared to balance the demands of college soccer with the fundamentals of academic life and, as my first season ended, I needed a change in scenery to take stock of a semi-disastrous first semester. I chose Bedford Falls as a sort of pilgrimage because, in my still adolescent mind, this small town represented hope, optimism, and the best of who we are, and I needed a place to reset my academic and personal compass.
Bedford Falls — for those of you who have not squandered untold hours in the world of black and white movies — is the small town that Frank Capra chose for “It’s a Wonderful Life” which, thanks to the power of Capra’s storytelling and to the lack of copyright, has been played over and over again every holiday season. In the fog of my evolving adolescent brain, I believed that Bedford Falls actually existed — that the map would show me a place with that name that offered an openhearted, generous America born of the mind of Capra, the Italian American immigrant storyteller who managed to persuade the great dream makers of Hollywood to open their pocketbooks to his imagination.
You know by now and, unlike me, probably knew when you were 18, that Bedford Falls does not exist, literally or metaphorically. In the years that followed, that reality sunk in — the reality that America’s heart was open to some and closed to others. As I saw more of our world, I began to sense another dimension to the dream that Capra spun and, for those of you who have seen the movie, a dark side reflected in the nightmare sequence in which his populist paradise transforms instantly into a world in which cruelty, suspicion, and humiliation replace kindness, family, and community. Over the years that followed, as I experienced more and more of our America, the classic holiday scenes ceased to generate yuletide joy for me and, instead, I started to focus on the nightmarish America that Capra exposed with the eyes of an immigrant whose family had barely escaped Mussolini’s fascist Blackshirts. I began to sense Capra’s real message — that we live close to the line of fascism every day despite the stories we tell ourselves about America’s exceptional place in the world — a message that resonates more and more after Jan. 6, 2021, and that Capra buried in a dream-like sequence to deflect the attention of the censors of the Hays Office on the eve of McCarthyism. “It’s a Wonderful Life” becomes a cruel and sardonic phrase — not sweetness and sunshine — if you inhabit the dark side of Bedford Falls and even more so once our eyes are open to the realities of racism, classism, and sexism in our America.
I make this confession of naivete for a reason as I take on the responsibilities of stewarding NACDL for a brief time alongside our tireless, creative, and inspiring staff. Simply put, I want to confess that I struggle, from my privileged background, with my role as a criminal defense lawyer in the “Two Americas” that MLK dissected from the rarified environs of Stanford University in 1967. I struggle to hold onto the idea of the generosity of an America that offers hope to some with the reality of an America built, as James Baldwin put it, at the expense of people of color. I struggle with my day-to-day work in a system that protects some but turns its back on people of color, the indigent, and so many others while celebrating its parchment principles. I make this confession because I hope that in the next year, and in the years to come, we stand shoulder to shoulder to face the profound contradictions of driving a process defined by noble principles within a profoundly racist and classist system that essentially nullifies those principles for many.
Having confessed my naivete and shared my motivation for my work, I am taking the liberty of conveying to you my hopes for the next year. First and foremost, I look forward to working with you to embrace the opportunities offered by our remarkable moment in history. While our country remains deeply divided over many issues, we can see a broad consensus emerging that we must face the profound injustices — particularly racial and socioeconomic injustice — in the criminal legal system. Any reasonable observer of our system, from any sliver of the political spectrum, knows that we must keep our eyes on the prize and continue to move the needle toward meaningful reform. So let’s roll up our sleeves together and get to work meaning, concretely, that I hope that each of you decides to become more involved in the NACDL community. Your experience, insight, and wisdom define and drive NACDL’s work.
I also want to share with you that we have weathered the recent storms well. While other bar associations have dwindled in terms of members and faced painful financial crises stemming from the pandemic, NACDL has not only increased its membership and maintained its financial position but has also amplified its voice in the national conversation on criminal legal reform. No question that our strength flows directly from the hard work, creativity, and vision of Norm Reimer and our staff and, of course, from the moral authority of NACDL’s voice in this moment of reform. We all owe Norm and our staff an enormous debt of gratitude for navigating NACDL through very troubled waters to safe harbor.
Finally, I want to open a dialogue with you on eliminating the trial penalty, which I have made the focus of my year based on conversations with many of you and the pain of standing next to so many clients subjected to prosecutorial coercion in plea bargaining. Why? Because every day in virtually every courtroom across the country, coercive plea bargaining has transformed the logic of an adversarial system into an assembly line system of unconscionable pleas. Every day, people plead guilty solely because a prosecutor threatens that they will receive an exponentially greater post-trial sentence compared to the pretrial offer — “take two years now or 25 after trial.” The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney that threatens a post-trial sentence much greater than the pretrial offer. The defense attorney — very often at the outset of the case before receiving the evidence or having had an opportunity to investigate the case or even establish a relationship with the client — conveys that offer to her client. The client must then choose between the right to defend herself by challenging the sufficiency and legality of the prosecution’s evidence, on one hand, and, on the other, the risk of suffering a post-trial sentence that is years, if not decades, greater than the pretrial offer. This scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.{1} 1 This paragraph is based upon analysis published by Norm Reimer and me in the Editors’ Observations to the April/June 2019 issue of the Federal Sentencing Reporter.
The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.” President Adams’ colorful language reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused. The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.
We are the stewards of this process, and we must set our sights on restoring the balance intended in the Constitution in great part because the trial penalty falls most harshly upon the most vulnerable, especially racial and ethnic minorities and the poor, thanks to the effects of systemic racism and implicit biases and other bargaining inequalities. NACDL, under the guidance of Norm Reimer, championed the need to restore the constitutional balance. As most of you know, NACDL has published two widely praised and highly influential reports regarding the trial penalty in the federal criminal legal system and in the state of New York and has initiated projects in several other states. NACDL has led this effort and will continue to do so for the sake of our clients, our members, and the future of our country.
On this note, as the defenders of the Constitution and the last champions of liberty, we must rise to the challenge, state by state, county by county, and courtroom by courtroom. We can do so, and we will succeed, because we have justice and common sense on our side and because NACDL empowers us, lifts up our voices, and gives us community. We can put Bedford Falls on the map — not the nightmare built on hatred, fear, and division but a community built on first principles of due process, equality, and hope.
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
Martín A. Sabelli (NACDL Life Member)
Law Offices of Martín A. Sabelli
San Francisco, California
415-298-8435
msabelli@sabellilaw.com
http://sabellilaw.com
