Prosecutors Help People, But How Often?


Baby criminal-defense lawyer Murray Newman writes:

The thing I loved the most about being a prosecutor was helping victims of crime. There was a profound feeling of doing something important when meeting with the victim’s family on a murder case, or the surviving members of an aggravated sexual assault, robbery, or assault and telling them you would do everything in your power on their cases.

I think prosecutors, current- and ex-, often romanticize the job. They tend to remember the capital murder and the robbery while forgetting the hundred crack pipes and five hundred DWIs that came before those (confirmation bias?). Yet there are clearly some cases in which the government, by getting and punishing the right guy, makes someone else’s life better. For example, in an aggravated sexual assault case the victim might rationally feel safer with her assailant behind bars; in a theft case the victim might receive restitution if the thief is on probation.

This topic comes to my mind because I’ve been pondering Lateral Hire‘s assignment to the Child Abuse Division (sorry, now known as the Crimes Against Children Division — change for its own sake) of the Harris County District Attorney’s Office. The Child Abuse division tends to get things wrong fairly often (that comes from being staffed in part by true believers who rely on the word of young children), but when it is prosecuting the right guy there is the chance that, if it screws up, a child will be in danger. The assignment of a lawyer with zero criminal trial experience to that trial division is grossly inappropriate . . . almost offensive. (Update: Ms. Hire has been transferred to the Appellate Division, where her experience may be a better fit.)

Trying cases, believe it or not, is hard. We don’t learn to do it in law school. It gets easier, but there is a learning curve. A lawyer (defense or prosecutor) whose first trial is a major felony is There have got to be fifty billets in the DA’s Office in which a non-trial lawyer can learn to try cases (or not try cases) without putting anyone in danger if she screws up a righteous case. Isn’t that what misdemeanor courts are for?

Here’s a question: of the subset of righteous cases (those in which a factually-guilty person is being prosecuted), in what percentage will an identifiable human be worse off if the accused is not punished as the government seeks than if he is?

I’m not talking about “society” being worse off, and I’m not talking about speculation. I’m also not talking about “honoring the dead”, whatever that means. I’m talking about being able to say truthfully, “by punishing person X, we help person Y because . . . ” or “by not punishing X, we hurt Y because . . .”

The vast majority of drug cases are out of the running. Crimes against corporations, too (if you wanted to help corporations, you’d be getting rich as a civil lawyer, not working for a living as a prosecutor or defense lawyer, and if I wanted to fight against corporations, I’d be a PI lawyer, and would be a wealthy man).

DWIs? Nope.

Murder cases? Putting the killer in prison (or killing him) doesn’t bring back the dead guy, but it is conceivable that it can otherwise improve the survivors’ lives. So maybe sometimes but, in my experience, not all or even most.

Assault cases? Probably when you’re talking about taking an abuser out of an abusive situation. Otherwise, usually not.

The Texas judiciary’s statistics are singularly unhelpful (1/3 of the cases are listed as “other”), but I’m guessing, based on my own observations, that in maybe 25% of cases will someone’s life be improved by someone else’s conviction.

What do you think? Your impressions? Informed guesses?

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0 responses to “Prosecutors Help People, But How Often?”

  1. Although there are a lot of theft cases involving corporations, there are a significant number of theft cases involving a single victim. Criminal damaging charges (as they are called in Ohio) are almost always damage to the property of a single person, and restitution can be obtained with a conviction or plea. Vandalism is usually small businesses or a single victim.

    I know DWI’s are normally one of the “society crimes,” but some of those do involve property damage. Maybe 1 out of every 10?

    I think violation of a protection order, menacing, and domestic violence are other charges where a defendant, not involved in mutual combat or mutual hatred, may believe that they are untouchable. This obviously falls under speculation, so I’ve already violated your rules, but I don’t think that can just be discounted out of hand.

    • I’ll accept the single-victim theft cases in which restitution can be paid. (Prosecutors will say they aren’t in the business of collecting restitution, though . . . ), as well as criminal mischief.

      DWI property damage is usually covered by insurance regardless of the outcome of the criminal case. Some protective order violations and some DV cases surely qualify, whether the complainants know it or not.

      • You obviously have more effective ways of ensuring drivers have insurance in Texas, because I see a large number of uninsured drivers getting DWI’s. I suppose there is uninsured motorist coverage, or maybe homeowner’s insurance, but restitution is not uncommon, at least for deductibles.

        In fact, I think restitution in assaults is a factor to consider as well. Especially in felonious assaults, the medical bills can be rather high. Even insured victims will have deductibles.

        Those might not be quite what you were looking for as to helping people, and there may be some prosecutors who could care less about restitution if they get the conviction, but restitution can come up in many cases.

        • I’ll accept cases involving restitution generally, including those in which an uninsured but solvent drunk hits someone without UM insurance.

          I still think we’re talking about 25%.

          • After eliminating what you did, I think your estimate may be high! The vast majority of cases in my very limited experience are drug cases, DWI’s, Driving Under Suspension, Thefts, and DV/assaults. Taking out the third due to obvious reasons, removing drug cases entirely, and limiting DWI’s significantly cuts down the potential set of cases with a person being helped

  2. When a DWI case, murder case, or assault and batter case is prosecuted, the prosecutor is helping the public at large. The idea is deterrence. The criminally accused is deterred or prevented from committing the same crime again, and the everyone else is deterred from committing similar crimes for fear of prosecution.

    The prosecutor helps the family of four driving home at night from being hit by the same DWI driver. If the murder is behind bars, he can’t murder again. The same goes with assault and batter and many other crimes. So, I do believe prosecutors help victims by making the world that they live in that much safer for their loved ones, neighbors, and friends.

  3. I hear that this is Ms. Hire’s third assignment. That has to be a record for a month’s worth of work. Maybe she and Patty figured out that she isn’t a trial lawyer. But that’s off point.

    I think mala in se v. mala prohibita is the right dividing line. Evil should be prosecuted, self destruction shouldn’t. DWI is a crime that has the great potential of hurting others and is thus a mala in se offense. Drinking to excess isn’t, but then driving is. I lobbied against lowering the limit to .08 without success, but there has to be some cut off so that enforcement isn’t arbitrary. It’s a better argument that the punishment imposed doesn’t provide the solution. Not true of dope. Purely mala prohibita except when it leads to other crime. And probably wouldn’t lead to other crime if it wasn’t a crime. When it does, prosecute that crime.

    • Every prosecution has a direct human cost, and a societal cost. It also might have a societal benefit, and a direct human benefit. All we’re talking about here is direct human benefit because, otherwise, we are, at best, speculating and, at worst, making shit up (a term of art).

      DWI prosecution is actually a good example of an area in which we are past the point of diminishing return, as far as societal benefit vs. human and societal cost. Proponents of our current draconian DWI laws, and of more severe laws, make shit up about the societal advantages, and pretend there are no social costs, to justify giving the government more power. A driver who is legally “intoxicated” by either definition may be less of a danger to other people than a driver who is talking on a cellphone, adjusting the radio, daydreaming, or just angry.

      The numbers suggest that the entire criminal justice system is past the point of diminishing return. If putting more people under government supervision could make us safer, then we would already be, by far, the safest nation on Earth.

      • I disagree with this DWI discussion. 2 drunks leave a bar 10 minutes apart. They are both about the same level of intoxication. They both run a light down the road. The first makes it ok, the next one kills 2 people. What’s the difference? If I shoot at you, and either injure you or kill you, its a serious felony. If I’m DWI – class B. If I kill someone – Felony2.

  4. Nonspeculative? Definitely not. After all, at some point, even serial murderers who don’t get caught stop doing it. (Maybe not always just because they grow old and die.) Ditto for robbers. It’s speculation to say that the robber who is arrested and then imprisoned would continue robbing people if that didn’t happen — but it’s not insane speculation, and while we don’t know the names of the people who are protected by them being jailed, it’s not unlikely that there are real people.

    That said, let me give you an example I was around for: the Knox brothers, Gregory and Jerry Lee. While they went to prison for a robbery & assault on a grandmother of my acquaintance — May 1, 2004 — there’s at least plenty of reason to think that their occupation was beating the crap out of people (generally elderly ones; I don’t think it was because they particularly liked beating old people, but because they were interested in getting rather than receiving the beating) and taking their money. A very similar string of strongarm robberies in that neighborhood came to a stop after their mother turned them and and they went first to jail, and then to prison. That they were the perpetrators is, of course, speculation; they weren’t charged with or convicted of those acts.

    Not just to keep my street cred as somebody who sees complexity even in the simplest things intact, let me add that the two of them had a horrific (term used deliberately) childhood; there’s ample reason to believe that they were raised by a sex worker with nonlawful pharmaceutical preferences, and if somebody were to tell me that they were sexually abused as kids, I wouldn’t react with reflexive disbelief.

    One’s out; one gets out in a couple of years. I don’t know if either will return to their previous occupation, but I’m pretty confident — although I can’t prove it — that there are real human beings who didn’t get beaten and robbed because they were inside.

    Typical of robbers in that respect? I’d not be surprised.

  5. This game is skewed Mark… and you know it… The premise is right, that in the majority of crime, whilst the cost to the offender/his family/the people he employed etc clearly will be identifiable in every case – a ‘victim’ may not be.

    But to say we are speculating or making shit up if we can’t name the victim, this is simply not right.

    It appears to me that your system has lost sight of due process (from our disclosure discussions) perhaps that is because you have lost belief in the rule of law. On an individual basis, I know where you are coming from and there are many cases which should not be prosecuted with relish… I’d go as far as to say there are none… but in answering your question, who is the identifiable victim, I will quote the great man,

    “Ask not for whom the bell tolls, it tolls for thee”

    And lest any of your readers forget, that great man was not Hemingway… But the one time Chaplain of my Inn of Court (which is a great place to visit by the way).((talk about off topic, too much vino!))

    • Far too much VIno… Can’t even understand what I have written myself…

      I would go as far as to suggest there are no cases which should be prosecuted with relish.

      There we are… better

      It’s Lincoln’s Inn by the way… bloody amazing place…

    • The thing that Murray loved most about prosecuting — not preventing crime or protecting society or chastising the wicked but helping victims of crime — doesn’t, I contend, apply to the vast majority of criminal prosecutions. In most cases, a victim is not helped by a criminal’s imprisonment; the government often prosecutes people against the victims’ wishes.

      The game is the game. I’m not saying that the only crimes that should be prosecuted are those in which the prosecutor is actually helping an identifiable human being. But we need to be truthful about the rewards (and costs) of the work that we are doing.

      I shall come visit your Inn of Court. Can you arrange for me to sit second with you in a trial?

  6. One of the main critiques put forward by the “restorative justice” movement against the existing adversarial system is precisely that criminal prosecution does shockingly little to identify and meet victims’ actual needs.

    I’d also second most of jigmeister’s sentiments, but Seth asks us to guess how many angels dance on the head of a pin, pointing to speculative (and often, unlikely) benefits to “the public at large” that cannot be documented or quantified.

    I agree the proportion of overall cases where prosecution is actually “helping victims” is vanishingly small. Some exist, but mostly such rhetoric, IMO, amounts to a strained conflation aimed at justifying the majority of cases where the victim doesn’t directly benefit at all from the prosecutor’s work.

    Also, the moment the victim doesn’t support the prosecutors’ decision – e.g., the sex abuse victim who doesn’t support a lengthy sentence for a family member – it’s always amazing to me how quickly the victim’s stated interests are discounted so the prosecutor can adopt a “tuffer” stance.

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