By Collin County Criminal Lawyer Jeremy Rosenthal
Most criminal defense lawyers will tell you the smaller the county, the harsher they are.
The New York Times agrees. They wrote this article last year with an interactive map showing precise data from almost every county in the United States about their incarceration rates… and just as importantly…. their percentage of increase or decrease in the last decade.
The article focuses on Dearborn County, Indiana. They sentenced a drug addict charged with possession of heroine to 35 years of prison. You read that correctly. The collection of small towns by the Ohio river jails more people than San Francisco and Durham COMBINED.
My practice is in Collin County, Texas. It is the suburbs. We are the 7th most populous county in Texas and the 63rd biggest county in the country according to Wikipedia on the date of the publication of this blog. Being a bigger county, I don’t think we remotely resemble Dearborn County, Indiana.
From our Collin County base we see it all. In addition to Collin, we practice in urban Dallas and Tarrant Counties. We have neighboring suburban counties to our own in Denton and Rockwall Counties. From time to time we have the occasion to practice in neighboring rural counties.
I should note there are always exceptions to the rule, and I’ve found practice in some rural areas extremely pleasant and excessively fair. But bye and large, here’s why I think we often have “tough sledding” in rural counties as proven by the news article.
Eroded Checks and Balances
Our system of justice is supposed to have built-in safeguards in the form of checks and balances. When those safeguards aren’t working — things go haywire.
Probably the largest unseen hand in any courthouse is that of volume. Dallas and Tarrant counties have more cases than they know what to do with.
“Depth Perception” and Experiences
With greater volume the “extremes” are more pronounced… that is the most severe and egregious crimes tend to be much worse and the more borderline or unfair mishandled police investigations or prosecutions are probably extremely bungled and unfair.
With greater volume tends to be greater “depth perception” about how egregious any single case might be to a prosecutor.
A Dallas prosecutor might deal with 10 shoplifting cases before lunch every day. So an 11th case won’t be earth shattering to them. The prosecutor, then, also learns some of the common underlying factors of shoplifting such as mental illness or youthful exuberance… and they probably also see collateral effects of petty theft like immigration headaches or loss of college opportunities. An urban prosecutor might give sweetheart plea offers on the shoplifting cases just to get to a 10 minute lunch break — or so they can focus on a more egregious case they’d rather prosecute more strictly.
A rural prosecutor might have the same shoplifting case but there is potential to be more strict for no other reason than they might not have anything worse to prosecute… thoughtful and sincere as they might be.
Pressure to Move Cases
Prosecutors are under pressure to move cases through the system. Big counties have more of them. Of course, it is relative based on personnel… but bigger counties are more over-worked, plain and simple.
Prosecutors who are pressured to move cases will almost always make better plea offers and/ or dismiss borderline cases.
As a criminal defense lawyer, I should be the single biggest safeguard of a defendant’s rights. I can cross examine, investigate and subpoena. I can appeal and point people to adversarial remedies.
Police don’t like getting cross examined and they don’t like being investigated themselves. They don’t like being told they are wrong in closing argument. This only makes them human.
We are human too. It is perfectly natural for a defense lawyer to fear retaliation by an angry judge, prosecutor, or police officer who takes exception to something we might do to defend a client.
In Collin County, I have the benefit of knowing that if I upset a police officer while I’m doing my job — there is a good chance I’ll never run into them in public or get pulled over by them randomly. The same is even true with prosecutors and judges. Though I’ll obviously see them on a more routine basis — chances are the next time I see them after a heated battle will be a month or two down the road by which time the water is under the bridge.
The bigger the county — the more aggressive the defense lawyers can be. This is important. The more aggressive the defense lawyers — the more careful police, prosecutors, and judges are when they do their jobs.
Independence of the Courts and Law Enforcement
It is always troublesome going to a courthouse where you know the police and the prosecutors, and the Judge (and sometimes the defense lawyers too) are drinking coffee together in the morning.
There’s nothing overtly wrong about these relationships — but it is obvious it makes it harder for a defendant to get a fair shake. Judges, prosecutors, and defense lawyers are people too (a recurring theme) and the friendlier and cozier they are will law enforcement, the harder it is for anyone to tell a police officer “no” on any given case.
In larger counties these relationships tend to be more at “arms length.” That means there is greater separation — frankly for no other reason than it is impractical for everyone to work out of 3 or 4 offices on the same floor.
Again, there is nothing wrong with prosecutors having a close working relationship with law enforcement to include advising them, assisting them in attaining things like search warrants, or training them on courtroom procedure. The problem comes when there is virtually no separation and over-fratinization. Smaller counties struggle with this more probably for no other reason than their community is more tight-knit.
An appeal should also be a cross-check on local authority. Chances are the appeals judge is somewhere else and can lend an outside view to what happened in the trial court.
The problem with appeals courts is when they become rubber-stamps. In Texas in most instances they only affirm or deny the conviction and the sentence. Texas judges are elected. I joke with juries if they ever see one run on a platform of “I’ll be easy on crime” to please let me know so I can go oppose that judge in the next election!
Attitudes Towards Police
Urban counties have bigger problems with citizens trusting police. Prosecutors in those jurisdictions probably need to choose their battles wisely. Rural prosecutors can be more aggressive in cases where there may be issues about police conduct because their jurors may simply be less critical of police.
I sometimes get the impression rural counties feel like they have something to prove to outsiders. I acknowledge these may just be my feelings which doesn’t make them proof of anything. Still, it is an impression hard to shake in some instances.
The Bottom Line
There is clearly an objective and provable difference between rural and urban criminal justice. The statistics just don’t lie.
If you ask ministers of justice in third-world countries they will all tell you how they are “tough but fair.” But the only check and balance they have is their conscience.
Our prosecutors and judges consciouses can be the largest check and balance too where our institutional checks and balances become eroded.
I wonder if this is what we’re seeing.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly.