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January 8, 2009 in
Pride goeth before destruction, and an haughty spirit before a fall.
I had a federal drug conspiracy sentencing this week in which I was arguing, based on my client’s horrible childhood and his history of being a law-abiding and productive member of society for all but two of his 49 years, that he should not go to prison.
The government’s argument was, “there are lots of people who have horrible childhoods and don’t commit crimes.” My response was, “show me one person who, when he was six, saw his mother executed by his father and who, at age 10, was present when his cousin murdered his father, who didn’t get tens of thousands of dollars of therapy, and who didn’t wind up breaking the law.”
But this didn’t get through to the prosecutor at all. Because really the “lots of people go through the same things and don’t break the law” argument isn’t about real human beings experiencing horrible trauma, neglect, and genetic misfortune. It is, rather, about the prosecutor imagining that he would have done better if he were in the defendant’s shoes, just as a good defense is about convincing a jury that they might have done the same in the accused’s shoes.
Because, really, how severely can we punish someone for something that we would have done in the same circumstances?
“The same circumstances” have to include not only the specific traumatic events, but also the rest of the defendant’s upbringing, as well as his genetic makeup. Human behavior is incredibly sensitive to initial conditions, and nobody can say what single genetic switch might make the difference between a Hitler and a Schweitzer.
If a prosecutor had the same genes as the defendant and the same upbringing, he would be the defendant.
The proposition, “I would have done differently in the same circumstances” is prideful. To say that you would, if you were the same person, have acted differently is to claim that there is something special about you that could overcome the nature and nurture that the defendant couldn’t conquer.
Pride used to be the Seventh Deadly Sin; it got Lucifer cast out of heaven; now it’s a prerequisite for public service.
I believe there are seven corporal works of mercy and that one is “visit the imprisoned.” The more modern translation is “imprison the poor” and forget about them. I had to deal with Evercom recently in a court appointed case and realized how much money is made from phone calls from correctional institutions, around $1 a minute. So we allow the imprisoned to visit with their families on the phone for $60 an hour. In Colorado, inmates earn around 60 cents an hour so you only have to work an hour and forty minutes to earn a minute on the phone.
But if you were born on third base and think you hit a triple, this seems fair. Like the cartoon used to say, “String ’em up; it’ll teach ’em a lesson.”
I liked everything about your post except one thing: you didn’t identify the prosecutor. If you don’t want to tell us who he is, fine. Tell him who I am. And that he can bite me. If you don’t know my phone number, it’s easy enough to track down on the state bar website.
How you extrapolate that common sense argument into a straw man you can viciously attack is anyone’s guess, but I think all of us — especially attorneys — would do well to remember that verse.
And it wouldn’t kill you to cite it, would you? It is Proverbs, 16:18.
I don’t cite Shakespeare or the Bible. I figure my readers are clever enough to know the general source of the quote, and to find the specific cite if they need it.
But I also figure they’re clever enough to follow the train of thought from “lots of people in the same circumstances wouldn’t” to “in the same circumstances I wouldn’t” to “if I were the defendant I wouldn’t” to “I’m superior to defendant, so I wouldn’t.” So there you go.
Have you ever asked that someone be punished for doing something that you realized you would have done in their circumstances? If you have, you’re a hypocrite; if you haven’t, it’s only because you are not conscious of how deep and wide our circumstances spread.
Next time you feel like judging someone, try “I’m better than him” on for size. Then try “There, but for the grace of God [or “my great good luck”, if you’re averse to God], go I.” See which seems more true to you, and act accordingly.
If you’re comfortable with “I’m better than him”, well, then, there but for the grace of God go I. You and I were, as David says, born on third. I am fortunate to realize it.
There is a pretty wide and speculative gap between the two arguments of “This person broke the law” and “I’m better than him.” Unless, of course, general hostility toward the othe party aids your inferences, in which case you are free to judge him to be as prideful as is necessary to make your point.
You’re uncharacteristically grumpy lately. But grumpy or not, you’re right. There’s a gap, and it is this:
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.
This sounds like an argument against free will, in which case I have to ask, do you think if you had been in the prosecutor’s shoes—including all the things in his life that made brought him to that courtroom—would you have made the same argument he did?
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.
Windypundit, whatever you do, for the love of all that is decent, don’t get us into an argument about free will!!!
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 believe your logic is flawed. Even if the prosecutor might commit the same act as the defendant were he subject to the same conditions as the defendant that does not compel the conclusion the defendant should not be punished for an act he did commit. Even assuming your speculative theory concerning the prosecutor is valid (a rather bold assumption) he has not committed the acts which your client committed. He would only be a prideful hypocrite in asking for punishment of your client if he would believe he would not deserve punishment if he committed them because he is a better person.
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.
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.
So. you believe you have an omniscient grasp of human nature which allows you to predict how a particular person (the prosecutor) would behave had he lived an alternative existence — and you accuse him of excessive pride?
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.
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 can safely say that I have free will; I was predestined to do so, after all.
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.
Damn, reading some of your comments was a severe test of my impulse control!