Jia Tolentino and the Anatomy of American Injustice

Last Wednesday, author and New Yorker writer Jia Tolentino shared a heart-wrenching story about a dark chapter in her family’s history: the federal prosecution of her Filipino-Canadian parents for human trafficking violations. Her family’s case is useful to understand how the American criminal system regularly perpetuates injustice instead of justice.

An effort to address the U.S. nursing and teacher shortages

Tolentino’s family ended up in the cross-hairs of the government as a result of their work helping to fulfill U.S. skilled labor shortages. She explains:

Around the time I was born, my grandmother founded an agency placing nurses from the Philippines in U.S. hospitals that were experiencing a skilled labor shortage. (This is an extremely common migration pattern for Filipinos — I recommend Jason DeParle’s “A Good Provider Is One Who Leaves,” on the subject! — with about eleven percent of the Philippines’ total population working overseas.) Soon after, she and a business partner began placing Filipino teachers in U.S. schools, too. When my family moved down to Houston from Toronto in 1993, my dad joined the company, which continued to bring nurses and teachers over through a lawful process, typical of the many recruitment agencies of this kind. Specifically, on the side of the teacher program, the company sponsored school district personnel to travel to the Philippines and meet with qualified teachers who they might be interested in hiring; the school districts identified the workers they wished to hire, and the company began the lengthy process of bringing them to the States with H1B visas — filing a petition, waiting for approval and issuance. In 2003, ten years after my dad began working for the company, a school district in Texas declined to hire a batch of teachers to whom they had previously extended job offers. Crucially, the company was not informed of the change of plans until after the teachers had already traveled to the States. My dad worked to get those teachers re-hired in other districts, and placed all but four of them successfully. ICE, then a brand-new agency with a directive to protect America from illegal immigration, investigated the displaced teachers, whose visa petitions bore the name of the school district that had extended the job offers before declining, rather than the school districts where they eventually worked.

In 2004, to their horror, my parents were charged with a battery of things that, if they were found guilty, would add up to over a hundred years in prison for each of them: the counts included alien smuggling, harboring and transporting aliens, conspiracy to defraud the government, money laundering, and more. The company’s open, earnest, lawful work helping fellow Filipinos move to America for good jobs in teaching had been swiftly reframed as hideous criminal activity. (emphasis added)

In the best-case scenario, this is a small business that is actively navigating the bureaucratic nightmare that is the U.S. immigration system. Some paperwork didn’t line up with authorities’ expectations — by miscommunication, mistake, negligence, or malfeasance — and Tolentino’s parents faced significant prison terms* as a result. The number and severity of the charges were overwhelming.

That overwhelming feeling is not accidental. It is the natural result of Department of Justice policy.

Throwing the book at federal defendants

The U.S. Department of Justice’s Principles of Federal Prosecution reads**:

Once the decision to prosecute has been made, the attorney for the government should charge and pursue the most serious, readily provable offenses. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences. (emphasis added)

Although the comment under this principle states, in part, that charges “should not be filed simply to exert leverage to induce a plea,” only two percent of federal defendants go to trial, and 90 percent of federal convictions come from guilty pleas. It is impossible to know to what extent the charges carrying the maximum sentences weighs in a defendant’s decision to plead guilty, but it is unreasonable to believe that it plays an insignificant role in that decision, and the data bear that out.

And because the vast majority of convictions are guilty pleas, the strength of the allegations listed in indictments are rarely tested in court. Thus, while prosecutors are instructed to only charge what they can “readily” prove, they are so seldom required to do so that the standard is effectively meaningless beyond what the prosecutor personally believes.

“Innocent until a prosecutor thinks you’re guilty” is no standard of justice at all.

Presumption of innocence

To the general public, the idea that someone is “innocent until proven guilty” is often viewed as a social nicety, a fiction that we’re all supposed to treat someone as innocent even though we all know he did it. After the 15th or 20th woman comes forward claiming a prominent comedian or film producer sexually assaulted them, the majority of people who believe the accused is innocent are either related to or counsel for the defendant — and even they likely have their doubts. News writers may even roll their eyes when they have to put “alleged” in front of “rapist” in their reporting.

But the presumption of innocence is supposed to be more than a socially recognized benefit of the doubt. Among other things, it means the government should not be able to punish someone until after a conviction. Unfortunately, the American judiciary has been exceptionally tolerant of government acts that infringe upon individual rights, particularly during criminal investigations and adjudication. And the most flagrant and most common violation of the innocence presumption is pretrial detention: holding the accused in a cell before trial.

In her blog post, Tolentino recalls the phone call from her father on her 16th birthday, the first time she had spoken to him in months following his arrest. According to her account, her father was not only held before trial, but held in solitary confinement, an isolation typically used for punishment within correctional facilities.

As I’ve written elsewhere:

Pretrial detention can wreak havoc on a person. Being held in a jail cell keeps individuals from their jobs, families, and other integral parts of their lives; a person’s life can be upended by a single missed work shift. Even putting aside the sometimes hellish jail conditions that exact their own toll, the chaos that pretrial detention can bring to a defendant’s life can easily influence their decision to plead guilty, whether or not the defendant is, in fact, guilty.

Isolated from family and friends in jail, unable to work, facing potentially lengthy prison term, all the while needing large amounts of money to defend oneself against criminal charges is what presumptive innocence looks like for too many defendants in the ‘land of the free.’ Indeed, many defendants don’t have the money to hire their own lawyers.

No peace

Tolentino felt compelled to write the post because she had noticed an increase in attention to the case in recent weeks. Her Wikipedia page and social media accounts showed multiple assertions by strangers that her parents were human traffickers. Tolentino wrote that the experiences she recounts “destroyed” her parents, and random strangers all over the internet started lobbing horrible accusations at her family more than a decade after they had tried to put this behind them.

Recall the litany of charges that the government alleged her parents had committed: alien smuggling, harboring and transporting aliens, and money laundering, inter alia. Despite everything her parents had been through already, and the lengthy prison sentences they faced if convicted, they were two of the vanishingly few federal defendants who elected to go to trial to defend themselves and their names.

No justice

The government failed to obtain a conviction and the case ended in mistrial. But because her parents weren’t acquitted, the government got another bite at the apple and her parents faced going through this ordeal again.

No longer able to pay for private counsel, court-appointed attorneys advised her father to take a plea deal. The charges against her mother were dropped, and her father pled guilty to “conspiracy to defraud” the government, which is to say that, according to Tolentino, “he admitted…that the paperwork for the displaced teachers’ visas [was] inaccurate.”

The punishment for this dastardly act? In addition to much of their property forfeited to government coffers, Tolentino reports that ultimately her father served “a few months’ probation.”

Of course, as evidenced by Tolentino’s blog post and all commentary since, the family’s punishment continues in the public sphere for the allegation of human trafficking. As far as the law is concerned, he was guilty of a clerical error, albeit a serious one. (N.B.: DOJ forbids prosecutors from accepting unauthorized Alford pleas that allow defendants to take the punishment of a criminal sentence without admitting guilt.)

Now, there will be people who read Tolentino’s account who will believe her father was the villain the government said he was in the indictment. And while I have not been persuaded of that, let’s assume for the moment that he was. The fact is that the government never got a jury conviction. And so, when the government’s first attempt failed, they offered this alleged “human trafficker” probation in exchange for a guilty plea.

Recall the DOJ guidance that said the charges were not to be filed in order to extract a guilty plea. The second part of that sentence reads, “nor should charges be abandoned in an effort to arrive at a bargain that fails to reflect the seriousness of the defendant’s conduct.” Such directives, if taken seriously, should result in sentences after trial and after plea that would be somewhat similar to that originally charged, with the understanding that a plea “bargain” would provide some reasonable discount.

Does “a few months’ probation” “reflect the seriousness” of human trafficking? What about the roughly 40 charges against Tolentino’s mother that were dropped entirely?

Such a disparity between the initial charges and the ultimate plea reeks of the coercion the DOJ says it prohibits.

Convictions of the people, by the people

Prosecutors carry out their work in the name of ‘the people,’ and for the system to work, the people — the American public — must believe it is fair. But in this case, the government failed to live up to its own standards and principles of justice, regardless of the ultimate culpability of Jia Tolentino’s parents. And while someone might think this case is an outlier, the truth is far more discomfiting: this is how the American criminal system operates. It produces convictions, divorced from justice for any victims, let alone for the accused. And most of the accused do not have the initial financial wherewithal of Tolentino’s family.

Once arrested, individuals can spend weeks or months in jail before they can fight the government’s allegations — allegations that will likely haunt them forever, even if the charges are dropped or they are acquitted.

The black letter policy for the federal government’s lawyers is to charge the maximum penalty for a defendant based on a subjective perception of “provable” that is rarely put to scrutiny at trial. For the sake of fairness, the American public should not believe that such policy carries an intention of extracting a guilty plea from the accused, despite only two percent of federal defendants exercising their constitutional right to a trial before a jury of their peers.

Furthermore, the public should not believe that an innocent person will plead guilty to a crime so they don’t spend many years in a cage, torn away from their families and the rest of their lives, in an environment in which prosecutors are instructed to deny “no contest” pleas by defendants who refuse to admit guilt.

Unfortunately for people like Tolentino’s parents, much of the American public still believes what the prosecutors want them to, even though the prosecutors seldom have to prove it.

Whether one believes Tolentino’s account or the charges in her parents’ indictments, it’s virtually impossible to look at the way these prosecutions were handled and believe justice was done. The government’s actions and methods were geared to produce convictions, not to find truth or seek justice.

Tolentino’s parents’ ordeal is all too common, up to and including the shame and stigma that prompted her to write the post. Overcriminalization, maximal charging policies, alleged abusive detention practices, and the emotional and potential costs of trial produced a plea bargain that continues to haunt Tolentino’s family so many years later.

Such is the fundamental anatomy of American criminal adjudication. This is our injustice system.

Notes

*Criminal sentencing, particularly in the federal system, is complicated and statutory maximums do not necessarily reflect the likely outcome for any given conviction because of mitigating and aggravating factors. For present purposes, whether either parent would have been sentenced to “over a hundred years” if convicted may not be accurate, but the precise number of years isn’t particularly relevant. The charges were serious and the stakes were very high.

**At the time of Tolentino’s father’s guilty plea, U.S. Attorneys were working under an older version of the Principles of Federal Prosecution and its clarifying commentary, but the relevant sections mentioned are enough the same for the purposes of this writing. The newer version has the dual advantage that it speaks to current DOJ policy and also is linkable by section. You can read a PDF that includes the older Principles of Federal Prosecution here. (See, 9.27.300 ‘Selecting the Most Serious Offenses’; and 9.27.440 ‘Plea Agreements When Defendant Denies Guilt’)