I just recently did a post criticizing the notion of judges having policies. So I was in Court the other night and had another such encounter.
This again is a judge I like, arguably one of my favorites. He has a warm personality, a good sense of humor, respects not only the lawyers but the people who come before him as well. He also has policies, or at least one policy.
My client was accused of shoplifting (petit larceny), allegedly stealing a fairly small amount of merchandise from a local store. We worked out a deal with a very pleasant and fair prosecutor where my client would do a rather substantial amount of community service as part of an ACOD. The client had a completely clean record, is a good student, etc. So clean in fact that he was literally trembling for most of the time we were in court. This was possibly the most terrified client I've ever had.
We approached the bench and the judge informed us that he doesn't do ACODs on petit larceny cases. That sounds a lot like a policy. I made a further effort, going into some detail about why it was appropriate in this case. I think he actually thought about it, as he did hesitate for a minute and seemed to be thinking about it, but he fell back on his policy of no ACODs on petit larceny.
The legislature sets policy. It has established CPL 170.55 (and 170.56 for marijuana). In my not-so-humble opinion, judges should evaluate each case on a case-by-case basis to see whether the broad circumstances suggest an ACOD would be appropriate. The nature of the offense should not be a significant factor, because the legislature has set this provision for all misdemeanors and lesser offenses. Nothing in the statute gives judges authority to make their own policy decisions about which offenses are unworthy.
The idea is (or at least it should be if Warren ran the world - all who know me shudder at that thought) that the defense lawyer, prosecutor and judge review the defendant's background, criminal history, and various factors such as grades, mental health, strength of the case, etc. If the defendant has a clean record, gets good grades or does good work at their job, and otherwise seems like a good person, then an ACOD is like a warning without leaving a damaging stain on the defendant's record. If the defendant has a mental health issue, then treatment for that issue can be a part of the ACOD. Community service can also be a condition of ACODs under 170.55 (but in my opinion, not under 170.56), and may be appropriate to make sure the "good, clean" defendant gets a clear message that what they did was not acceptable and make sure the message sticks.
I'd say it would be nice if the legislature did a better job of setting clear standards for ACODs, but they'd probably just make things worse. When I gripe about judges, remember they have to deal with poorly written laws. These are good people doing the best they can with the junk the legislature puts out there, and the problems society sticks in their courtrooms.
I'd like it if there were a bit more sympathy and understanding for first-offenders who appear to be otherwise good people, but the politics of criminal law mean that judges and prosecutors have to be "tough on crime." Just remember next time you hear some politician saying that - they're not just referring to rapists and murderers, where things are already quite tough. They're referring to your kid, your sister, your brother, and maybe even you. We don't need to get tough on crime. We need to get smart on crime, and especially on dealing with mental health.