As I said to the group, my experience in criminal law is limited to a representation I undertook as a third-year law student (when I was in clinical practice, assisted by a faculty supervisor). I had a client -- a woman who I believe at the time was in her early 40s, divorced, one teenage daughter, worked diligently in a blue-collar job, no previous trouble with the law of any kind -- who worked an overnight shift at her job and, on her way home, ingested enough alcohol to place her over the legal limit. She caused a head-on car accident from which she emerged unscathed but the two people in the other car were, unfortunately, killed.
Since there was no question of the defendant's guilt, my task involved representing her in sentencing proceedings. Ultimately we entered into a "cap" agreement with the prosecutor -- i.e., we'd enter a guilty plea and let the judge impose sentence as long as it didn't involve jail time beyond a specified cap (in this instance I believe it was seven years). The sentencing hearing was VERY emotional. As I mentioned, the son of one of the victims yelled at my client in open court -- "You killed my father!" -- that sort of thing. I asked the judge to place my client on some kind of home confinement after a very brief time in jail (I think I proposed two weeks), plus probationary conditions that would be designed to deal with alcoholism and that sort of thing. (I don't honestly know if this client was an alcoholic but I learned that when you kill two people in a drunk driving accident you are instantly labeled an alcoholic even if your crime resulted from irresponsibility as opposed to addiction.) To say that this woman was overwhelmed with a sense of remorse is to fail even to begin to describe how she felt about her responsibility for this horror. She explained this in court to the judge and the victims' families in a manner that struck me as courageous. The judge actually cried as he sat on the bench, he found this situation so difficult. In the end, he imposed a sentence that resulted in the client serving two years in prison, followed by a long probationary period.
As I said, I felt honored to have undertaken this representation. I was comfortable asking the judge not to send this particular woman to prison or jail for any significant period, just as I would have been comfortable imposing no incarceration on the woman whose case our class discussed yesterday.
I realize the analogy is imperfect, since a sexual crime involves all shorts of dimensions that are missing from even a horrible drunk driving incident. But, as I noted, both cases involved women with good records who let alcohol affect their judgment.
You asked whether I would have been comfortable with no jail time if the victim had been my daughter. I conceded that my reaction would be more veangeful in that instance. You asked me to consider why the criminal who harmed someone else's family would be entitled to different treatment from me than one who had harmed mine.
When I was representing the client described above, and in particular after I stood in open court alongside a person who had killed two people and asked the judge to treat her mercifully, I could not help but think about how I would feel if one of my loved ones had been the victim of such an act. I imagined myself standing before the court and telling the judge that I was very angry, that I found myself in a struggle to acknowledge the humanity of, much less forgive, the defendant -- but that I looked forward to a day when I might do so, particularly if the defendant had the courage to engage me. I further imagined myself declaring to the court that I saw no useful purpose to incarcerating the defendant and therefore that she should be sent home to confront a lifetime of guilt and remorse. In other words, I would have asked the court to eliminate punishment (as opposed to deterrence or rehabilitation) from the sentencing calculus.
This all happened more than eight years before I myself became a parent. It's all a lot less hypothetical now. I'd like to believe I would still proceed as I imagined back in 1993, but I have a much more visceral sense now of how devastated I would be if someone killed or sexually assaulted one of my kids, particularly my daughter, of whom I am sure I feel especially protective because of my gender conditioning and because she has a chronic illness to which I have responded with particular fierceness. So I am willing to admit that maybe I would find it impossible for me ever to urge that someone who had inflicted so much harm on my family ought not be incarcerated. I simply don't know and to reflect on it further is too unpleasant to contemplate.
My real point in the context of our present discussion, and the one I tried perhaps feebly to make yesterday at a couple of junctures, is that it is good rather than bad that "the system" imposes a different, and likely less harsh, sentence than the one the victim or the loved ones of the victim might like. A fundamental assumption of our criminal law is that when one commits a crime the legally aggrieved party, and thus the one who institutes legal proceedings, is not the victim but the state -- i.e., the community as a whole. I find this to be a civilizing force, a welcome step past eye-for-an-eye dispute resolution.
Keep in mind that apart from criminal proceedings there is always the issue of civil liability as a means of making the victim whole in a monetary sense. (We can leave aside for present purposes all of the trickly questions that relate to the absurdity of measuring monetary damages in a wrongful death case, or a sexual assault.) Even if civil proceedings can make the victim entirely whole -- e.g., by causing the defendant in an embezzlement case to disgorge a sum that makes it so that the crime essentially never happened from the victim's standpoint -- there is still a wrong here to be redressed. That's the wrong for which the community, and not the victim, is entitled to compensation via criminal proceedings. And I am comfortable with the community, and not the victim, making the relevant decisions.
To think of it from another angle, the extent to which a criminal 'pays' for his crime by jail and/or fine should, I think, not turn on how forcefully the victim chooses to express and assert her/his victimhood. So, too, should the result not turn on who the victim is (except insofar as it informs the question of actual guilt or innocense), lest we impose harsher sentences on criminals who harm people who are wealthier, more attractive, more privileged, more responsible ( e.g., by wearing seatbelts, as the two people whom my client killed were not) or just more articulate than others. That's why the focus in sentencing proceedings is entirely on the defendant and his needs, however repugnant that has to feel to the victim. The right we have carved out over the past couple of decades, allowing direct victim participation in criminal proceedings, is in derogation of these principles. I've always found that troubling.
If you've read all the way to this long and ponderous message, I thank you heartily. As I said, I would be very interested in knowing more about how you view this dilemma, both as a person and an ethicist.
As an ex- corrections person, I would tell you that this sort of pondering was not one that we engaged in much. Since our job was to carry out sentences imposed by the court, this kind of philosophical thought would have made the job harder, I think. BUT, as a person now out in society, I DO think about these issues, specially as it relates to the death penalty. I too do not have an answer about where I would stand if it happend to one of my loved ones, but at a distance, I would say I am against the death penalty. These questions and others have been around forever.....there is no right or wrong answer. But thank goodness we live in a place that we can debate them. Edda
The other night I was on the phone with my big brother who is the assistant head of the criminal division of the Rhode Island Attorney General's office. He's been prosecuting crime in Rhode Island since 1986 and has had some doozies -- the Hightower case where a man murdered his business associate, wife and child -- the Craig Price case involving a man who had committed 4 murders as a juvenile, and most recently he was very involved in the Station nightclub fire prosecution (indeed was called to the scene before the fire was fully out). I told him about the excercise we did with judge Mcguire, how it really shook me, I told him about meeting the inmates, how reflective and philosophical it had made me and he said. "well you see what I do every day. Yesterday I was at a sentencing where a man had killed his brother. the parents were crying -one son dead the other going to jail for life- it was a very emotional scene. And all I could think was "man I hope they wrap up in tie for me to get my son from basketball practice"
I had always thought of of my brother fondly as a sort of Atticus Finch crusader for justice (I always have to have a literary reference) it really sort of threw me to hear him talk about his job with the same ho-hum dum that I talk about my job sometime. I don't know where I'm going wiith this but I think it supports Edda's point that people in the corrections business don't spend that time in reflection and contemplation that we might from the 'outside'
I confess I do still think of my brother as a hero though. Katie
In case anyone read my long post above and found its context confusing, allow me to confess that I originally created it as a response to a conversation I had with our professional ethicist classmate. Then Edda posted it here with my permission.
In my opinion, Katie can still consider her brother a hero even if he finds himself wondering, in the midst of a heart-rending hearing, whether he'll get out in time to pick up his son from bkb practice. People who take on the troubles of others for a living, even highly compensated ones, affirm rather than deny their human-ness if they take care to maintain the boundary between their personal and professional life. So nobody should ever not be able to pick up his kid.
I'm a bit less willing to let Edda off the hook, not because I lack affection or respect for her, and not necessarily because I disagree with her. I just want to think about it more.
One can hardly expect an ethical corrections official, should she come to believe one of her inmates is innocent, simply to take it upon herself to free the inmate. The only result of that would be to land BOTH of them in prisons, and not on the "just visiting" square. But maybe one would expect that official to use every means at her disposal to help the inmate prove her innocense and gain release. What do we think about the jailors who kept Nelson Mandela behind bars all those years? Would we simply expect them to be good jailors and never consider the unjustness of the incarceration? If not, how's that any different from a prison warden in NH with an imate she thinks isn't guilty? These aren't rhetorical questions; I pose them in earnest.
4 Comments:
As I said to the group, my experience in criminal law is limited to a representation I undertook as a third-year law student (when I was in clinical practice, assisted by a faculty supervisor). I had a client -- a woman who I believe at the time was in her early 40s, divorced, one teenage daughter, worked diligently in a blue-collar job, no previous trouble with the law of any kind -- who worked an overnight shift at her job and, on her way home, ingested enough alcohol to place her over the legal limit. She caused a head-on car accident from which she emerged unscathed but the two people in the other car were, unfortunately, killed.
Since there was no question of the defendant's guilt, my task involved representing her in sentencing proceedings. Ultimately we entered into a "cap" agreement with the prosecutor -- i.e., we'd enter a guilty plea and let the judge impose sentence as long as it didn't involve jail time beyond a specified cap (in this instance I believe it was seven years). The sentencing hearing was VERY emotional. As I mentioned, the son of one of the victims yelled at my client in open court -- "You killed my father!" -- that sort of thing. I asked the judge to place my client on some kind of home confinement after a very brief time in jail (I think I proposed two weeks), plus probationary conditions that would be designed to deal with alcoholism and that sort of thing. (I don't honestly know if this client was an alcoholic but I learned that when you kill two people in a drunk driving accident you are instantly labeled an alcoholic even if your crime resulted from irresponsibility as opposed to addiction.) To say that this woman was overwhelmed with a sense of remorse is to fail even to begin to describe how she felt about her responsibility for this horror. She explained this in court to the judge and the victims' families in a manner that struck me as courageous. The judge actually cried as he sat on the bench, he found this situation so difficult. In the end, he imposed a sentence that resulted in the client serving two years in prison, followed by a long probationary period.
As I said, I felt honored to have undertaken this representation. I was comfortable asking the judge not to send this particular woman to prison or jail for any significant period, just as I would have been comfortable imposing no incarceration on the woman whose case our class discussed yesterday.
I realize the analogy is imperfect, since a sexual crime involves all shorts of dimensions that are missing from even a horrible drunk driving incident. But, as I noted, both cases involved women with good records who let alcohol affect their judgment.
You asked whether I would have been comfortable with no jail time if the victim had been my daughter. I conceded that my reaction would be more veangeful in that instance. You asked me to consider why the criminal who harmed someone else's family would be entitled to different treatment from me than one who had harmed mine.
When I was representing the client described above, and in particular after I stood in open court alongside a person who had killed two people and asked the judge to treat her mercifully, I could not help but think about how I would feel if one of my loved ones had been the victim of such an act. I imagined myself standing before the court and telling the judge that I was very angry, that I found myself in a struggle to acknowledge the humanity of, much less forgive, the defendant -- but that I looked forward to a day when I might do so, particularly if the defendant had the courage to engage me. I further imagined myself declaring to the court that I saw no useful purpose to incarcerating the defendant and therefore that she should be sent home to confront a lifetime of guilt and remorse. In other words, I would have asked the court to eliminate punishment (as opposed to deterrence or rehabilitation) from the sentencing calculus.
This all happened more than eight years before I myself became a parent. It's all a lot less hypothetical now. I'd like to believe I would still proceed as I imagined back in 1993, but I have a much more visceral sense now of how devastated I would be if someone killed or sexually assaulted one of my kids, particularly my daughter, of whom I am sure I feel especially protective because of my gender conditioning and because she has a chronic illness to which I have responded with particular fierceness. So I am willing to admit that maybe I would find it impossible for me ever to urge that someone who had inflicted so much harm on my family ought not be incarcerated. I simply don't know and to reflect on it further is too unpleasant to contemplate.
My real point in the context of our present discussion, and the one I tried perhaps feebly to make yesterday at a couple of junctures, is that it is good rather than bad that "the system" imposes a different, and likely less harsh, sentence than the one the victim or the loved ones of the victim might like. A fundamental assumption of our criminal law is that when one commits a crime the legally aggrieved party, and thus the one who institutes legal proceedings, is not the victim but the state -- i.e., the community as a whole. I find this to be a civilizing force, a welcome step past eye-for-an-eye dispute resolution.
Keep in mind that apart from criminal proceedings there is always the issue of civil liability as a means of making the victim whole in a monetary sense. (We can leave aside for present purposes all of the trickly questions that relate to the absurdity of measuring monetary damages in a wrongful death case, or a sexual assault.) Even if civil proceedings can make the victim entirely whole -- e.g., by causing the defendant in an embezzlement case to disgorge a sum that makes it so that the crime essentially never happened from the victim's standpoint -- there is still a wrong here to be redressed. That's the wrong for which the community, and not the victim, is entitled to compensation via criminal proceedings. And I am comfortable with the community, and not the victim, making the relevant decisions.
To think of it from another angle, the extent to which a criminal 'pays' for his crime by jail and/or fine should, I think, not turn on how forcefully the victim chooses to express and assert her/his victimhood. So, too, should the result not turn on who the victim is (except insofar as it informs the question of actual guilt or innocense), lest we impose harsher sentences on criminals who harm people who are wealthier, more attractive, more privileged, more responsible ( e.g., by wearing seatbelts, as the two people whom my client killed were not) or just more articulate than others. That's why the focus in sentencing proceedings is entirely on the defendant and his needs, however repugnant that has to feel to the victim. The right we have carved out over the past couple of decades, allowing direct victim participation in criminal proceedings, is in derogation of these principles. I've always found that troubling.
If you've read all the way to this long and ponderous message, I thank you heartily. As I said, I would be very interested in knowing more about how you view this dilemma, both as a person and an ethicist.
Cordially,
Don
As an ex- corrections person, I would tell you that this sort of pondering was not one that we engaged in much. Since our job was to carry out sentences imposed by the court, this kind of philosophical thought would have made the job harder, I think. BUT, as a person now out in society, I DO think about these issues, specially as it relates to the death penalty. I too do not have an answer about where I would stand if it happend to one of my loved ones, but at a distance, I would say I am against the death penalty. These questions and others have been around forever.....there is no right or wrong answer. But thank goodness we live in a place that we can debate them.
Edda
The other night I was on the phone with my big brother who is the assistant head of the criminal division of the Rhode Island Attorney General's office. He's been prosecuting crime in Rhode Island since 1986 and has had some doozies -- the Hightower case where a man murdered his business associate, wife and child -- the Craig Price case involving a man who had committed 4 murders as a juvenile, and most recently he was very involved in the Station nightclub fire prosecution (indeed was called to the scene before the fire was fully out). I told him about the excercise we did with judge Mcguire, how it really shook me, I told him about meeting the inmates, how reflective and philosophical it had made me and he said. "well you see what I do every day. Yesterday I was at a sentencing where a man had killed his brother. the parents were crying -one son dead the other going to jail for life- it was a very emotional scene. And all I could think was "man I hope they wrap up in tie for me to get my son from basketball practice"
I had always thought of of my brother fondly as a sort of Atticus Finch crusader for justice (I always have to have a literary reference) it really sort of threw me to hear him talk about his job with the same ho-hum dum that I talk about my job sometime. I don't know where I'm going wiith this but I think it supports Edda's point that people in the corrections business don't spend that time in reflection and contemplation that we might from the 'outside'
I confess I do still think of my brother as a hero though.
Katie
Classmates, et alia:
In case anyone read my long post above and found its context confusing, allow me to confess that I originally created it as a response to a conversation I had with our professional ethicist classmate. Then Edda posted it here with my permission.
In my opinion, Katie can still consider her brother a hero even if he finds himself wondering, in the midst of a heart-rending hearing, whether he'll get out in time to pick up his son from bkb practice. People who take on the troubles of others for a living, even highly compensated ones, affirm rather than deny their human-ness if they take care to maintain the boundary between their personal and professional life. So nobody should ever not be able to pick up his kid.
I'm a bit less willing to let Edda off the hook, not because I lack affection or respect for her, and not necessarily because I disagree with her. I just want to think about it more.
One can hardly expect an ethical corrections official, should she come to believe one of her inmates is innocent, simply to take it upon herself to free the inmate. The only result of that would be to land BOTH of them in prisons, and not on the "just visiting" square. But maybe one would expect that official to use every means at her disposal to help the inmate prove her innocense and gain release. What do we think about the jailors who kept Nelson Mandela behind bars all those years? Would we simply expect them to be good jailors and never consider the unjustness of the incarceration? If not, how's that any different from a prison warden in NH with an imate she thinks isn't guilty? These aren't rhetorical questions; I pose them in earnest.
cheers,
Don
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