Deliberately Puzzled,

If we can’t say what chemical switch or experience created the initial condition on which present behavior is dependent, then, considering our relative situations it’s as possible that I deserve punishment for the little I’ve made of the many advantages I’ve been given as that Mr. George deserves punishment for making the best of his disadvantages. If Mr. George hadn’t been caught breaking the law, and had beat his crack habit, then he might deserve a medal rather than prison. No, I don’t have an omniscient grasp of human nature, and neither do you or the judge or the prosecutor, which is my point. In such circumstances, when we human beings really can’t tell what each other deserve, I think it’s better to err on the side of mercy and compassion, to make everybody’s way through the world easier.

I think its’ fair to say that two people with the exact same genes and exact same upbringing could not exist without being the same person. Mr. George did what Mr. George did; if Prosecutor Dies had been Mr. George, there’s no question that he would have done the same thing.

In the absence of any evidence that we might be, in the final analysis, able to choose what we choose to choose, I’m pretty comfortable saying that every decision that I make is the result of an infinitude of things beyond my control or understanding. I am what I am at this very moment because I was born with these genes to those parents at that time in that place. I can’t predict what I would have had for breakfast this morning if I had been born ten minutes earlier than I was. And, of course, I was born with these genes etc. because of the way the particles bounced in the first instants of creation.

What are you trained in? Give me some background, and maybe I can relate it better to what you know best. I don’t believe that any sane intelligent thoughtful truthful person exists who says, “I would have done the same thing in the same circumstances, and if I had then I would deserve punishment as well.” Your hypothetical prosecutor is, in my experience, nonexistent. I have observed, as an avid student of retributive behavior, that once people start (truthfully — not just playing a game anonymously on some guy’s blog) saying, “in the same circumstances, I might have done the same thing”, the accused is as good as acquitted. That’s the best I can do for your imaginary prosecutor.

I’m unmoved by the prosecutor’s argument, not because he’s wrong (he isn’t; many people with horrible childhoods don’t end up convicted of felonies — I’ve known people who have gone through worse than what we’ve heard about your guy going through), or because of his lack of empathy or your (or my) sympathy for the guy, but, largely because: so what? Right or wrong, that argument doesn’t much matter in practical terms.

The controlling reason (there are others) that I’m glad the the guy was kicked loose has nothing to do with my sympathy for his horrible childhood (which I have, honest; how could one not?), or whether or not I would have done the same thing he was convicted of in his shoes (I don’t get all hot and bothered about whether or not somebody has or hasn’t carried nonexplosive chemicals up and/or down a set of stairs on behalf of somebody else, regardless of whose shoes were being worn at the time, or whether or not I’d have done it if I was wearing them), or out of a naive belief that a guy who was a crackhead for a bunch of years didn’t do much worse than change the location of some chemicals a time or three to support his habit during that time (I’ve only met one — now-former — cokehead who I’m confident managed to support his habit without committing any serious naughtinesses upon other people; you’d probably recognize the guy’s name), but for the obvious, simple reason: he’s spent most of his life — both before and after his crackhead years — demonstrating that he can get by in society without hurting the rest of us, and is a good (not perfect, but good) bet to continue to do so, given the other circumstances.

If I thought that — even through no fault of his own; a combination of his genes and upbringing, with nothing that he could do about it, even if he could afford terribly expensive therapy — the guy wouldn’t be able to go through the next couple of decades without getting back on crack, I’d want him locked up.

Not because I make any moral judgments about his pharmacological preferences and/or needs (because I don’t), and not because I’m a fan of the War on Some Drugs (I’m very much not), but because I think that, as things stand, an active crackhead is almost always going to be a danger to the rest of us, as he’s not going to be able — regardless of who or what the fault is — get what he’s going to get without doing a lot of harm to other folks.

That’s not a moral judgment, just a practical one.

Interesting. I will concede I am not trained in psychology, but I imagine you might make a challenging subject for one who is.

More to the point, you avoid my argument that it is not hypocritical of the prosecutor to press for punishment of your client unless he would believe he should not receive punishment if he committed the same acts as your client. The prosecutor may lack compassion or mercy but those are different traits than you acribe to him.

The prosecutor’s motivation is not a speculative theory; it’s soundly founded in human nature. We don’t say to ourselves, “I would have done the exact same thing in the same situation, but he should be punished anyway” (unless we’re hypocrites, in which case QED).

With all due respect, if you can’t grasp how the defendant’s childhood could have led him to have judgment and impulse control different than yours or mine, it’s either because you’re entirely ignorant of the last 20 years of neuroscience research and have no imagination, or you don’t want to grasp it.

Further, understand sensitivity to initial conditions. We don’t have enough information to know which flap of the butterfly’s wings caused the hurricane in the accused’s brain. We’re lucky when we have a discrete moment (the murder of a mother, a traumatic brain injury) to point to to explain to those ignorant of the workings of the human brain how it is that this person had different preferences than that one, but there are a million factors that drive the development of our brains, and it could be something as subtle as conditions in the womb or maternal neglect.

A kid who goes through what my client went through is all fucked up (to use the technical term), and is lucky to hold his shit together (another technical term) without professional care. If you think you know better, well, you’re going to have to share your credentials with us.

The logic of it, Windy, inexorably leads to a conclusion that we can’t safely say that we have free will. Yes, if I were in the prosecutor’s shoes, I’d’ve done the same.

Additionally, it is difficult to grasp the causal connection between beng exposed to intra-family violence as a child and deciding to sell drugs as an adult. Were the crime one of impulse or spontaneous violence your argument might have some persuasive power because people might truly believe that they too would lack the ability to cotrol their impulses if they had been subjected to that environment, but I doubt many people do believe they would probably become a drug dealer to make money if they witnessed extreme violence in their family.

Mark, I’ll readily concede the point: No human being of frail flesh can, in the large, cosmic sense, ever know what another “deserves.” And since I have probably earned more than my share of karmic whackings in my time, I think I’ll leave it at that.

I don’t have a problem with arguments based in specific deterrence, general deterrence, rehabilitation, or incapacitation; these are not necessarily prideful.

It’s only the desert (I like to use that word occasionally to keep my readers on their toes) argument (“punish him because he deserves it”, “hold him accountable”, “get even”), against which I consistently argue here, that is prideful. A humble prosecutor, if such a thing exists, might still argue for punishment for reasons other than because it is what the accused “deserves” — for example, for the reason I chastise prosecutors, which is that I hate to think of the karmic whacking they’re inviting if they don’t mend their wicked ways. If you think you can tell what other people deserve, you’re probably going to get what you deserve.