Skip to main content

Musings on our criminal justice system

By July 31, 2004Uncategorized

Having recently gotten involved in helping a good friend find criminal representation I find myself keenly aware of the differences between criminal defense lawyers and prosecutors. I have good friends on both sides of that equation, and I have a lot of good friends who are now on the defense side who previously were prosecutors. My friend is a good guy who made a silly mistake, and he’s not the sort of person our justice system should be processing.

He’s inclined to just throw up his hands, admit his mistake and set about becoming attuned to his responsibilities.

But he’s learning that the system (the one that presumes you are innocent until proven guilty etc.) is geared up to process people who are, on average, likely to be guilty of something illegal. And he’s learning that the best way to move through the system is to make it as hard as possible for the prosecutors to prove their case. That means: don’t cooperate, keep your mouth closed and remain patient. To him, that’s not compatible with ‘admit you made a mistake and let the system figure out you are a good guy and hope for the best.’ He believes that the people who work for the government are just average people who will see that he is not a threat to society, and will treat him fairly.

They might, but then again they might not see him the way that he sees himself. And he needs to learn that a system, no matter how good it is, is still a ‘system.’ And most systems are not set up to deal with the unusual case. It’s often very hard for the legal system to pick out the decent person from the many seemingly disturbed ones.

I now understand a little better why my criminal defense lawyer friends think the way they do. What way is that, you ask? Well, they mostly see people as well-intentioned and prone to making mistakes. They view punishment as fair only when it is closely matched to the unique state of mind of the unique person that they know and empathize with. A lot of my prosecutor friends are quite fair-minded and sympathetic, and they believe that people are well-intentioned. But, for the most part, they think ‘good intentions’ are hard to gauge and largely irrelevant to the administration of criminal justice.

Obviously, I wouldn’t make a good prosecutor. And, in case you are interested, I think the idea of Sentencing Guidelines is ridiculous. Why don’t we just have computers programmed to dispense sentences? That would be fair and even-handed and so symmetrical. I’m sure someone somewhere is dreaming of that perfect solution to the messy business of processing accused people. It’s hard to process them as though they were individuals with individual needs and outlooks. Isn’t it?

P.S. If you want a practice optimized for remote work & virtual collaboration, get this 24-page guide.
Skip to content