The Question of Compassion


AHCL thinks that she and I are coming at the question of compassion from different starting points.

AHCL writes:

You know, I think the reason that I disagree with Marky Mark and some of the other posters on a lot of the issues is because we begin on different starting points when we make our arguments.

While I start off talking about how the community needs good, talented and aggressive prosecutors on cases, I’m envisioning the ax-murderer and the baby raper.

When they start talking about mercy, compassion and a lack of arrogance in prosecution, they are envisioning the poor schlub who is walking down the middle of the street where a sidewalk is provided and the police find a crack pipe on him.

It’s true that we’re coming at the question from different starting points, but I think the divide is much wider than she recognizes.

First, the vast majority of people being prosecuted are more like the poor schlub than the “ax-murderer and the baby raper”. Sometimes people do really bad things; these really bad things make for good press, and scares the voting public into electing “tough-on-crime” judges and compassionless prosecutors and spending lots of money on law enforcement, but the great bulk of that money is then spent investigating and prosecuting (a) malum prohibidum offenses; and (b) piddly malum in se offenses.

Second, not everyone prosecuted for the really bad stuff has done the really bad stuff. Aggravated sexual assault of a child is a good example: some people charged with ASAC just flat-out didn’t do it. There’s often no physical evidence to back up a child’s allegation of sexual abuse. The DAs adopt the attitude that children wouldn’t lie about “things like that”, but anecdotal and scientific evidence proves them wrong. A prosecutor — especially a blindered prosecutor — can’t tell the difference between the bad actors and the falsely accused.

Third, even those few who done the really bad stuff are human beings. The prosecutor can’t know how his brain is wired wrong, how he was treated as a child, how he has been affected by traumatic brain injury . . . as 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 recognize that this is an unpopular perspective. Here’s the popular view, which is provably wrong. The proof is trivial.)

Because most people are poor schlubs, and because we often can’t tell the poor schlubs from the bad dudes, and because we can’t tell what even the bad dudes deserve, the better course (for our souls) is for all of us to cultivate compassion for all human beings (my friend Jon Katz will say “all sentient beings”; I’m not quite there yet).

But never mind the prosecutors’ souls: won’t society suffer if its prosecutors aren’t playing sociopath in the courtroom?

No. Two reasons spring to mind: first, compassion doesn’t make a trial lawyer worse; it makes her better. I’ve seen prosecutors lose trials in voir dire because of their lack of compassion. I’ve seen defense lawyers win trials in cross-examination because of their empathy for the witnesses testifying against their clients.

Second, consider the possible aims of punishment:

  • General deterrence;
  • Specific deterrence;
  • Rehabilitation;
  • Incapacitation; and
  • Retribution.

The only aim of punishment that suffers at the hands of a compassionate prosecutor is retribution, which has been so generally discredited that people who want to see public retribution use code phrases like “hold him accountable” and “show how we value life”.

A prosecutor with compassion for a defendant can still seek a sentence that deters the particular defendant, that deters the public, that incapacitates the defendant, and that rehabilitates the defendant. If life without parole is necessary, the compassionate prosecutor can seek it; if the compassionate prosecutor thinks that killing a defendant is necessary to incapacitate him and deter others, she can seek death. (In fact, I have seen compassionate prosecutors arguing for severe penalties; they are much scarier than the usual foaming-at-the-mouth ranters.)

So it’s not just that AHCL is envisioning people who don’t deserve our compassion, and I’m envisioning people who do. The divide between us is that between one who believes that compassion is something that only some deserve and one who thinks that compassion is something that should be given to all.

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0 responses to “The Question of Compassion”

  1. I see a systemic problem. The problem with prosecution is that we have too many malum prohibitum crimes.

    Those cases (Drugs) carry extreme sentences and drain vast resources from the criminal justice system.

    The result is that important cases, malum in se crimes, proceed without complete investigations and with little evidence.

    The result, innocent people go to jail, and our prisons are clogged with dealers.

  2. Compassion? Compassion for everyone?

    Mark you’re beginning to sound like all those weak kneed liberals like Jesus and Buddha.

  3. What Robert Guest said. If prosecutors are sincerely motivated by their compassion for the victims, why do they expend so much effort on victimless crimes?

  4. Okay. Is it prohibitum or prohibidum? Black’s says prohibitum. Have I been misspelling it all these years?

    Whenever people speak up in defense of prosecutors, they evoke images of violent crime. But prosecutors are spending the bulk of our resources prosecuting mala prohibita (take that, Latin-man!).

    Please don’t nail me to a tree.

  5. Okay, we need to come to an agreement to stop using Latin in our posts. I slept through that part of law school.

    I’m pretty sure that there is nothing that I can say here that is really going to change anyone’s mind, but I would point out that it seems that a lot of your posts are so very pessimistic. It seems as if you are lamenting that Justice NEVER happens in a Harris County courtroom. Surely that can’t be the case.

    As a prosecutor, I tried plenty of cases against Defendants that I actually liked. And that extended from DWIs to murders (believe it or not). But I had to set aside the fact that I liked them and ask for justice (in the form of punishment) from a jury. It wasn’t that I felt no compassion for them, I just had a different view of justice than the defense attorney.

    This could go on and on.

  6. AHCL, to the contrary, justice might happen in Harris County criminal courtrooms every day. What I’m saying is that none of us are omniscient enough to be sure that anything that happens down there is justice. I get a guy acquitted? He might have done something that we don’t know about that made him deserve prison. You send a guy to prison? He might already have suffered enough in his life that it’s unjust for him to go to prison, or he may himself have been an instrument of justice, punishing someone else who deserved it.

    But I think your choice of verbs is apt. Justice isn’t “done” or “found” or “achieved”. It, like shit, just happens. (Hmmm. T-shirt idea!) If we are lucky, we step in it despite our limited knowledge. And just as we don’t know justice is before we see it, we never really know it after it happens either.

    I think many of the current prosecutors are compassionate people who, if they gave it deep thought, would say that they see greater utility in causing suffering to the accused than in preventing suffering. They’re not the compassionless imprisonment machines that the public thinks they want.

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