Who Are You Helping, and Who Are You Hurting?


Today an anonymous prosecutorial commentor wrote, in the comments to my Support the Troops — Acquit a Vet post (and directly in response to my saying, “I’m not worried about people losing faith in the criminal justice system. Anyone who has faith in the criminal “justice” system is either on the government teat or oblivious”:

Do you not accept or recgonize views alternative to your own? It’s yoru blog, so of course you can say what you want. Like my Dad always says “it’s America”

Let’s say you have a violent offender who has robbed and seriously injured someone to the point they had to go to the hospital or someone who has violently raped another person. Extreme examples, but bear with me. In your world view what would you like to see happen? You have victims who want justice, retribution, what have you. Do we go back to the Old West and round up a Posse to go after the offender? Do we resort to vigilantism and let things work themselves out? We have laws going back to Moses on the Mount, that state how we should interact with one another. Assuming you think that laws are a good thing, should they not be enforced? Understand I’m not talking about drugs, DWI, etc. I’m talking about my examples.Those victims deserve a fourum and the right to be heard. They have an expectation that the person who wronged them will be held accountable. That doesn’t make them oblivious. Whether the jury finds them guilty or aquits, they’re still doing their duty, it’s still Justice.

I recognize and accept that some people have faith in the criminal “justice” system. But they’re mistaken. It’s a crappy system that’s designed to cause people pain.

Do you suppose that those victims who want retribution (their idea of justice) feel that justice has been delivered when (because of police or prosecutorial error, for example) their attackers go free? The criminal “justice” system is not there to provide a forum — or anything else — to the victims. Witness how often the wishes of complaining witnesses are disregarded by proescutors. If it happens that the criminal “justice” system satisfies some need of some human being, it’s mere coincidence. Anyone who expects it to do so or has faith that it will doesn’t understand the system.

Clarence Darrow said:

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves — whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

I suppose that if I had to be a prosecutor I would have to believe that people can know what justice is. I would further have to believe, hubristically, that I knew who should be “held accountable” for what transgressions, and how. The prosecutorial venture would seem entirely hollow otherwise.

But — thank God I’m a defender — I know that Darrow was right.

In a perfect world, I would want to see a criminal justice system based on restoration — making whole the people who are hurt — rather than retribution. In such a system I could comfortably operate on either side, working to heal victims as well as offenders. But that’s not the system we have.

On Monday Scott Henson (Grits for Breakfast) wrote about Howard Zehr’s talk to the Restorative Justice Conference in Kerrville. It’s a thought-provoking post. The highlight that is relevant to this discussion follows:

In many ways, said Zehr, the current criminal justice system denies victims almost everything they need. He quoted Judy Herman saying that if you set out to design a system to create post traumatic stress for a victim, you couldn’t do better than a court of law. This theme was repeated in other conference events so far – that the court process places unfair demands on victims that exacerbate their emotional response to crime instead of help them.

So not only does the criminal “justice” system cause pain to the people it’s designed to hurt (the accused) but it also causes pain to the people for whose sake you would cause the pain. Anyone who rationalizes putting people in prison because it somehow helps the victims is deceiving himself.

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0 responses to “Who Are You Helping, and Who Are You Hurting?”

  1. So the criminal justice system sucks. Given that it is run by the government, I am unsurprised. Despite this, I have every intention of entering practice as a criminal lawyer. I don’t know which side I will end up on, and I wonder if it matters. With all due respect to mr darrow, I believe that the condemnation of the criminal justice system is not good cause enough to destroy it without putting in its place a system that would fulfill the same purpose, keeping people in line. Is there any good reason to believe that civilization can keep from destroying itself without a system for spanking the bad children? I confess that because we are human and fallible there is always the chance of unfair treatment. But that is merely more reason for persons of good conscience to step up and take a role in governance. There are bad laws and bad prosecutors, but surely it is also possible to have good laws and good prosecutors.

  2. Colin,

    I think that is an excellent response. I am the “mystery” prosecutor that Mark is referring to. They’re are obviously things that I disagree to in Mark’s post, but I think you hit the nail on the head. They are good and bad prosecutors. They are good and bad defense attorneys. I believe you can be honorable no matter which side you’re on.

    Some cases do involves shades of gray where the only ones who know Exactly what happened are the ones who were present. As a prosecutor do I automatically disregard or believe what a victim is saying? No, but I do have to have something to coroborate their version before I can go forward. Then there those cases that are black and white, when there is no doubt in anyones mind what happened. I’m refering to those cases where it doens’t matter what the victim said to the offender b/c no one deserves what happended to them. If they’re that clear cut, they probably result in a plea, but some do make it to trial.

    Mark mentioned how wishes of complaining witnesses are disregarded. They’re taken into consideration, but you can’t always appease them. A witness may want an offender to be “thrown under the jail” but the statutory penalty may be far less than that. It may be a “REAL CRIME” to the victim, but the prosecutor may view it as something that should be reduced or pled b/c that is a stnadard resolution for that offense or that persons criminal history. That’s called treating people fairly and applying the law fairly.

    I’ve always viewed prosecutors and defense lawyers as two sides of the same coin. Excellent lawyers are needed on both sides.

  3. There you have the essence of it: the criminal “justice” system is “a system for spanking the bad children.”

    Some of us don’t think we (any of us) are wise enough to decide who needs a spanking and who doesn’t. Even good prosecutors convict innocent people. Don’t believe for a moment that the fact that anon thinks he never prosecuted someone innocent means he never did so.

    Many of us don’t think children should be spanked. Just as hitting children teaches children how to hit, using violence against people teaches people to use violence (and all governmental power ultimately flows from the government’s monopoly on violence).

    Many more of us think that, as a parent, the government sucks. The government is no better at raising adults than it is at raising children.

    The vicious and stupid prosecutors are conspicuous because they’re in the minority. There are lots of “honorable,” smart people working as prosecutors. Our point of divergence is simply one of philosophy.

    From what I’ve seen of the world, it is clear to me that no human being or combination of human beings is competent to decide what another human being deserves. In order to prosecute people, one would have to believe otherwise.

  4. I do not believe I am a “law and order” sort. I oppose the death penalty, prosecution for victimless crimes, and practically all intrusions of the state into private affairs. Something seditious goes on in my old catholic high school, because I, a determined agnostic, find myself identifying much more with christ than with most americans, who I find petty, cruel, vindictive, and ignorant. But no matter the appeal of turn the other cheek and love your brother, I am utterly convinced that, in its present state, humanity is incapable of that kind of love. Evolution has bred a very small group to be leaders and an immense group to be followers, and the followers will always be seduced by power and away from forgiveness. There is a reason why politicians stand up on televisions and make arguments that aren’t even arguments. Nobody is listening; they’re slaves, and they’ve pulled the wool over their own heads.

    Your suggestions are fantastic, in that they would be a fantastic way to run a government for the 30 seconds it took for some leader to stand up and explain to the mob that their lot could be better, and that someone else is to blame for it, and that only that leader loves them enough to solve their problems for them. So they’ll open up the jails and throw in the troublemakers, and we’ll be back where we started. People are motivated by the stick much more than by the carrot, and until that changes there will always be discipline of one sort or another. Perhaps you would prefer the world of For Us the Living, where you either go along, or you get exiled.

    I am proud to live in a country, if not a time zone, where people of conviction still live. I just don’t think that fighting the system is as effective as working from within it. Attacking prosecutors and judges for their inadequacies does not resolve the key issue, a lack of moral fiber and humility in their ranks. We should be inspiring people toward greater self examination, and wooing those who are already fluent in it, not forcing the opposition into a defensive posture. It is an extension of the teachings of ghandi and king: non-violence means more than no physical force. It means forcing those who would disagree with us to reconsider their own moral justifications, threatening them only with our rightness and our stubbornness.

  5. Colin,

    I don’t disagree with much of that. Edward O. Wilson, in On Human Nature, of Lawrence Kohlberg’s six sequential stages of ethical reasoning. I’ll write more about those later, but Wilson suugests that “the ontogeny of moral development is likely to have been genetically assimilated and is now part of the automatically guided process of mental development. . . the great maority of people reach stages four [“duty orientation”] or five [“legalistic orientation”] and are thus prepared to exist harmoniously — in Pleistocene hunter-gatherer camps.” Stage six is “conscience or principle orientation, primary allegiance to principles of choice, which can overrule law in cases the law is judged to do more harm than good.”

    I don’t think I’m attacking prosecutors and judges, but rather their ideas. I’m trying to reveal the little man behind the curtain. If that puts a prosecutor on the defensive, too bad — it’s the best I can do. I’m frankly more interested in the people who aren’t yet prosecutors. They don’t have as much stake in continuing to believe that they are competent to decide who gets punished.

    You invoke Jesus and Gandhi, and also say, “I just don’t think that fighting the system is as effective as working from within it.” History has shown time after time that the natural evolution of society is for institutions to become more powerful and people less powerful (that is, less free). People working within the system might slow the decline of human freedom, but the only ones who have ever reversed that decline are the revolutionaries. Jesus and Gandhi are excellent examples — see this Radical Stuff.

    If you are not a “law and order” sort — if you oppose the death penalty — if you oppose prosecution for victimless crimes — if you oppose practically all intrusions of the state into private affairs — then I don’t know of a prosecutor’s office that would hire you. Even if they do, you’re going to wind up in the defense bar sooner rather than later (it’s what you’re made for), so let me be the first to welcome you. Welcome!

  6. You mean Texas DA’s offices aren’t full to bursting with principled, states’-rights, libertarians? Not that I am necessarily any of those things.

    We east coasters elected fascists like Mrs. Clinton. You elected Ron Paul. What am I missing?

  7. When I first read the post I thought about jumping into the fray b/c I took offense at “Don’t believe for a moment that the fact that anon thinks he never prosecuted someone innocent means he never did so.” I thought where is this coming from? Mark know less about me then I do about him.

    But I went to court, came back and reread everything and saw this

    “There are lots of “honorable,” smart people working as prosecutors. Our point of divergence is simply one of philosophy.”

    I guess he doesn’t hate ALL of us after all. Carry on.

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