Tuesday, March 2, 2010

Prison, probation, perspective

It's Tuesday, so another post from our weekly regular, known only as The Assistant:

The first post I read at D.A. Confidential was “What Exactly is Probation?” The questions of what probation is, what it does, what it should do, and who’s eligible are central to understanding what a criminal justice system should be. There are several reasons that people have restrictions placed on their liberty through prosecution- to reform behavior, to make victims whole, to prevent repeat offending, or to keep the rest of the community safe. Sometimes, the only way to keep everyone else safe is to isolate an offender from society.

How our justice system deals with incarceration is a source of great philosophical disagreement that I cannot hope to resolve. It has been debated since before the English philosopher Jeremy Bentham drew his first sketches for the Panopticon. Incarceration has been justified as societal retribution, an opportunity for reform through moral punishment, and a deterrent cost under an economic model of crime. None of these, however, are as important as the fact that a criminal does not endanger society in the same way if he is isolated from it. Prisoners may always escape from the most austere incarceration, but there is no surer way to take a habitual DWI offender off the road than to deprive them of their liberty.

Incarceration should not be taken lightly. It is expensive for the state. It carries drastic consequences for the offender. Victims are not made whole and offenders are deprived of a chance to provide for themselves and their families. And believe it or not, but many of us who prosecute find that there is a psychic cost to sentencing people to jail. I would enjoy nothing more than waking up tomorrow morning and finding that my job was completely unnecessary. But it is necessary, and this past month has only complicated my personal views regarding societal seclusion through incarceration.

Last month, my son was born. My first child. My son. There isn’t a moment that I spend at work that I’m not thinking about him. I am not intimidated or concerned by violent and dangerous defendants. I’m a solidly built guy, participate in combat sports, and drive defensively. I can take care of myself. But my son cannot. My son. He needs me to protect him, and sometimes the only way that I can protect him is to make sure that a drunk driver doesn’t get behind the wheel for 180 days. Or 365 days. Or has the most stringent probation conditions that I can come up with. I have a responsibility to protect him, just as I had a responsibility to the two children who watched their father get beaten by two strangers while he stood beside the family car. Those defendants both received probation instead of jail so that they could pay restitution for medical bills. I wonder every day if that was the right thing. I may never know.

I make no claim of moral clarity or certitude. I’ve second guessed every single exercise of prosecutorial discretion since he was born. I’m not the only one with a son. One father came to me in the hall last week wanting to know about *his* son. I had to tell him that the judge had rejected the plea bargain recommendation and his son was spending three more months in jail. That father just wanted his son to come home. I watched a mother sit with her son in the hallway for five minutes while we waited on the jail transport van to take him back. She had driven four hours for the hearing just to have those five minutes. I’ve had defendants show me photos of their son while sitting in my office not because they were trying to garner sympathy, but because they were *proud*. Every player in this whole system was someone’s child, and we were all once as vulnerable as my son is now.

So where do we go from here? I don’t know. I’ll continue to go to work every day and try to do the best that I can to see that justice is done. Sometimes a defendant goes to jail. Sometimes a defendant receives probation. Sometimes a case is dismissed. The only thing that I do know is that every moment I will be thinking about my son.


  1. What a powerful post. Thank you so much. It is truly good to know that there are people who care so deeply out there, protecting us. On behalf of me, and my son and daughter, thank you for all you do.

  2. Look lady, he's a good guy and all. But where's my love? I mean sure, he's probably a "nicer" person, a more "honest" person, a "better" lawyer, and a "more caring human being," but really, sheesh.


  3. I also have better teeth, but that goes without saying since DAC is British.

  4. "a criminal does not endanger society in the same way if he is isolated from it ... there is no surer way to take a habitual DWI offender off the road than to deprive them of their liberty."

    I'd argue this is only true theoretically, and only in an imaginary world where resources are limitless, DWI offenders never get out, and new, younger DWI offenders are unavailable to replace them. But I don't think it's true in practice, where most people who drive drunk are not caught and nearly everyone sent to prison is ultimately released. That makes incarceration for DWI a short-term, mostly-for-show solution, at best, rather than "eliminating" a threat from society. Practical limits on the cost of mass incarceration mean it cannot be otherwise.

    In the real world, choices must be made between, say, incarcerating the DWI offender and the violent offender, much less those in possession of low levels of drugs, etc., at which point the equation you describe becomes more complex, the morality less black and white, and the relative benefits of incarceration less obvious compared to a strong probation regimen, particularly for drunks, drug addicts, etc..

    You also assume petty crooks and drunks won't become MORE dangerous while inside.

    The practice of punishing DWI with no victim harshly (I'm guessing without any treatment while in jail) while the violent offender gets a lighter sentence seems like a perversion of priorities, with all respect.

    Finally, something struck me as you linked your job goals with your desire to protect your newborn son. (My kid is now 25, and I've got a 3 year old granddaughter.) It's difficult to see at this age, but the toughest job in parenting is NOT protecting them, but teaching them to behave responsibly and take care of themselves while you learn to let go. That urge for protection is powerful, particularly when they're so young, but it's not the most difficult thing about parenting. Letting them make their own decisions later in life, even ones that you disagree with and that may put them in danger, requires much more courage and wisdom as a parent. That may not seem accurate now, but it'll make more sense when the kid's 17.

    Especially for drunks and addicts, the parenting metaphor for the justice system shouldn't be "protection" of our young but training them to make responsible decisions. Incarceration does little to achieve that goal.

    And congrats, btw, on the new young'un. :)

  5. Grits-

    I'd respectfully ask you to go back and re-read what I wrote. Unlike Bono, you always seem to find what you're looking for, but this is no pro-prosecution lock 'em all up screed. In particular, I specifically mentioned that there is a very difficult and complex choice inherent in pursuing incarceration over stringent conditions of probation.

    "The practice of punishing DWI with no victim harshly (I'm guessing without any treatment while in jail) while the violent offender gets a lighter sentence seems like a perversion of priorities, with all respect."

    Although we've gotten lots of rain where I work, I don't think the pastures here quite support that strawman. For one, to call a DWI a crime without a victim is like saying that Russian roulette is a game without a loser. With a small enough sample size that's correct. Beyond that, I don't know where you get the impression that I'm dealing with DWI defendants harshly while letting violent offenders off with a light sentence. If you have issue with the fact that I correctly described the DWI ranges of punishment (probation or a max of 180/365 days in jail) then that's an issue for legislators. If you're referring to the fact that two defendants received probation rather than incarceration for an assault, then you do so without knowing anything about the story. For starters, it was a decision made in consultation with the victim, a topic you've written extensively about.

    Finally, as far as "the parenting metaphor for the justice system shouldn't be 'protection' of our young but training them to make responsible decisions." That's a fine platitude, but for many defendants it's nothing but a platitude. I'd love to be able to train defendants to make responsible decisions, but in many cases it's not going to happen no matter how many treatment options they're assigned. I can't even begin to tell you the number of repeat DWIs that I see that occur while the defendant is still on probation for the first one, or how many domestic violence cases I see while a defendant is attending both Batterer's Intervention and anger management.

    So I really would ask you to go back and re-read what I've written. It's not intended as a justification for locking away every single defendant. At the same time, I'm trying to acknowledge that some defendants simply WILL NOT reform their behavior, no matter how many tools or chances they're given.


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