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.