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AHCL thinks that she and I are coming at the question of compassion from different starting points.

AHCL writes:

You know, I think the reason that I disagree with Marky Mark and some of the other posters on a lot of the issues is because we begin on different starting points when we make our arguments.

While I start off talking about how the community needs good, talented and aggressive prosecutors on cases, I'm envisioning the ax-murderer and the baby raper.

When they start talking about mercy, compassion and a lack of arrogance in prosecution, they are envisioning the poor schlub who is walking down the middle of the street where a sidewalk is provided and the police find a crack pipe on him.

It's true that we're coming at the question from different starting points, but I think the divide is much wider than she recognizes.

First, the vast majority of people being prosecuted are more like the poor schlub than the "ax-murderer and the baby raper". Sometimes people do really bad things; these really bad things make for good press, and scares the voting public into electing "tough-on-crime" judges and compassionless prosecutors and spending lots of money on law enforcement, but the great bulk of that money is then spent investigating and prosecuting (a) malum prohibidum offenses; and (b) piddly malum in se offenses.

Second, not everyone prosecuted for the really bad stuff has done the really bad stuff. Aggravated sexual assault of a child is a good example: some people charged with ASAC just flat-out didn't do it. There's often no physical evidence to back up a child's allegation of sexual abuse. The DAs adopt the attitude that children wouldn't lie about "things like that", but anecdotal and scientific evidence proves them wrong. A prosecutor -- especially a blindered prosecutor -- can't tell the difference between the bad actors and the falsely accused.

Third, even those few who done the really bad stuff are human beings. The prosecutor can't know how his brain is wired wrong, how he was treated as a child, how he has been affected by traumatic brain injury . . . as Clarence Darrow said,

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves -- whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

(I recognize that this is an unpopular perspective. Here's the popular view, which is provably wrong. The proof is trivial.)

Because most people are poor schlubs, and because we often can't tell the poor schlubs from the bad dudes, and because we can't tell what even the bad dudes deserve, the better course (for our souls) is for all of us to cultivate compassion for all human beings (my friend Jon Katz will say "all sentient beings"; I'm not quite there yet).

But never mind the prosecutors' souls: won't society suffer if its prosecutors aren't playing sociopath in the courtroom?

No. Two reasons spring to mind: first, compassion doesn't make a trial lawyer worse; it makes her better. I've seen prosecutors lose trials in voir dire because of their lack of compassion. I've seen defense lawyers win trials in cross-examination because of their empathy for the witnesses testifying against their clients.

Second, consider the possible aims of punishment:

• General deterrence;
• Specific deterrence;
• Rehabilitation;
• Incapacitation; and
• Retribution.

The only aim of punishment that suffers at the hands of a compassionate prosecutor is retribution, which has been so generally discredited that people who want to see public retribution use code phrases like "hold him accountable" and "show how we value life".

A prosecutor with compassion for a defendant can still seek a sentence that deters the particular defendant, that deters the public, that incapacitates the defendant, and that rehabilitates the defendant. If life without parole is necessary, the compassionate prosecutor can seek it; if the compassionate prosecutor thinks that killing a defendant is necessary to incapacitate him and deter others, she can seek death. (In fact, I have seen compassionate prosecutors arguing for severe penalties; they are much scarier than the usual foaming-at-the-mouth ranters.)

So it's not just that AHCL is envisioning people who don't deserve our compassion, and I'm envisioning people who do. The divide between us is that between one who believes that compassion is something that only some deserve and one who thinks that compassion is something that should be given to all.

Compassion and Sociopathy

There's an interesting argument discussion at Life at the Harris County CJC about the role of compassion in prosecution. Commenter PJ says:

We don't need righteous DA's doing "battle" with "criminals." We need people serving the public fairly, with at least some degree of understanding and compassion from whence "criminals" come.

Commenter anonymous c responds:

You think that we need ADAs who have "understanding and compassion" for the criminals. That's utterly absurd!

It would totally upset the whole idea of true Justice, which is that the ADAs, with compassion and understanding towards the victims, fight vigourously and tirelessly to convict and that the DEFENSE lawyers, with the understanding and compassion towards the criminals that you speak of, fight vigorously and tirelessly to acquit. In the middle of that battle is where, ideally, Justice is born. That's how it works.

I don't want to live in a county with touchy-feely, peace and love ADAs and I highly doubt that you would, either. It's just not reality.

Anonymous c presents the popular public misconception of the prosecutor's role. The public thinks that prosecutors are fighting for the victims, and that their goal is to convict. As a result, many of the voters think they want prosecutors without compassion for the people they are prosecuting.

Compassion, like mercy or grace, is not something that is earned. We don't treat people with compassion because of who they are, but because of who we are. We have a name for people without compassion: we call them sociopaths. Compassion given only to people who "deserve" it? It's not compassion at all.

The police aren't always right; often they screw up. Complaining witnesses aren't always truthful; often they lie. There's often no benefit to anyone in convicting the accused. Sometimes the accused is the true victim, sometimes everyone is a victim, but in most cases there's no victim at all. In most cases prosecutors aren't even pretending to be fighting for victims, but for the government.

Sometimes cases need to be dismissed; sometimes the law's penalty is unduly harsh; sometimes people's illegal conduct is mitigated by the good they have done or by the harm they have suffered. Only a sociopath would never feel compassion for anyone accused of a crime. But that's what the voters, scared mindless of crime, think they want from their prosecutors. And too often that (or a simulation thereof) is what the voters -- and their sons, husbands, fathers, and brothers -- get.

(For a former prosecutor's view of the prosecutorial mentality, see this post at Defense Perspective.)

Compassion Revisited

One commentator to Scott Greenfield's recent post, The Battle Lines are Drawn, wrote:

If you are worrying about harm to others you are in the wrong line of work. Your sole duty is a duty of zealous advocacy to the client. We don't have a duty to do justice. Harming others is part of the job if it serves the client.

While I agree withe the last two sentences -- we don't have a duty to do justice (even if we knew what justice was, we wouldn't have a duty to do it), and harming others to help our clients is occasionally part of the job -- I couldn't disagree more with the overarching sentiment. I've written on several occasions about how compassion is a part of the profession; criminal defense lawyers are compassionate -- they have to be to take care of the people whom the rest of society condemns.

The commentator suggests that there is something wrong with a criminal defense lawyer feeling compassion for people other than his clients.

To the contrary, a lawyer who truly feels compassion for his client is going to feel compassion for others as well.

I don't want to hurt anyone else; I try to avoid hurting others in my practice. Generally, by good fortune and skillful practice, I succeed. Sometimes, however, it is inevitable that someone will be hurt. When it is inevitable or necessary I accept it, but I regret it.

The federal government has created a system in which people can benefit themselves by harming each other. It's an unethical, unjust system, and it's neither necessary nor inevitable. We're not, in the main, talking about getting rapists or arsonists off the street; we're talking about putting people in prison for drug crimes, for commerce. This is one of the great evils of our time.

When people let the government pit them against each other, they give up power (freedom) to the government. Criminal defense lawyers, who are supposed to be fighting for freedom, become the government's accomplices in usurping freedom. I'm looking at the big picture, and, with all due respect to those lawyers who choose otherwise, I decline to participate.