In the years I worked as First Assistant District Attorney in Brazos County, I had many discussions about the philosophy of prosecution with my boss, the elected district attorney. We agreed about most things, but sometimes differed on fundamental approaches to prosecution. I was the first assistant and he was the boss, and so his philosophy guided the office and I, of course, deferred to his approach as was my duty as his assistant. I came to the Brazos County District Attorney’s Office, at my former boss’s invitation, with an already well-developed philosophy about prosecution and years of courtroom experience, which, I think, is why I appealed to him. He wanted, he said, another perspective, from someone he knew and whose opinions he valued. Our relationship was complicated. I am proud to say, however, that he told me, on many occasions that I dramatically elevated the professionalism and effectiveness of his office in all the ways he had hoped.
Over the years, the discussions we had were thoughtful and often animated, even heated. Some lasted hours and others carried over for days. One issue we discussed many times, and upon which we fundamentally disagreed, was whether the personal circumstances of individual defendants should be considered in the disposition of criminal cases.
His approach was that prosecutors, in determining the appropriate disposition of a given case, should look only to the offense committed and the facts of a particular case. He believed that trying to take into account the particular personal circumstances of a defendant would lead, inevitably, to disparate treatment of similarly-situated defendants. Take for instance, two defendants who are charged with the same offense, possession of a controlled substance. One is a high school dropout working at McDonald’s; no criminal history and charged with possessing cocaine. The other defendant is an honors student in college with a dream to enter the military and fly jets; this one charged with possessing one pill of Adderall a friend gave him to help him study. Both cases are state jail felonies. In the latter case, any disposition on a felony level, even a deferred adjudication probation, disqualifies the defendant from entering the military and ever flying jets. Should the cases be resolved differently? Should the latter defendant receive a break and get a misdemeanor disposition while the other defendant is placed on felony probation?
It’s a difficult question. My former boss’s opinion was that when you start taking into consideration personal circumstances, such as the effect a felony probation would have on plans to enter the military and fly jets, you risk the perception, if not the practical reality, that the system treats people differently for the wrong reasons, such as race, socio-economic status, and other impermissible considerations. In the example I have used, for instance, what if the high school dropout happened to be black and the college student white?
It is an appealing approach, but I think that it is ultimately the wrong approach.
I have been a criminal defense attorney for almost three years now. I represent a lot of college students. I represent a lot of people charged with offenses, both misdemeanor and felony, who stand to lose everything they have worked for or everything they have dreamed of because of one moment of bad judgment or foolish and stupid behavior. I am not talking about repeat or violent offenders. In my experience, our judicial system is largely populated by decent, well-intentioned people who have made bad mistakes and, I believe, based on my prosecution experience, criminal defense attorney experience, and my own personal experience (see my inaugural blog post for details), this fact compels a different approach.
I believe that a prosecutor must look at the individual defendant and his or her personal circumstances, as well as the facts of the offense they committed. I believe that they should take into account the impact a given disposition will have on a defendant going forward. It should matter in this calculus how hard one has worked and what they have achieved; ultimately, what they stand to lose. There is no question that certain offenses, or the manner in which certain offenses are committed, can overwhelm the personal circumstances of the defendant and render them irrelevant to the disposition of a case. But, for the vast majority of defendants, especially those charged with misdemeanors, it is appropriate, if not necessary to the proper administration of justice, to consider the individual defendant in deciding how to dispose of a case.
I readily admit that the approach that only takes into account the facts of a given case and the offense committed is the easier and safer path. The approach I advocate requires a thoughtful and dedicated prosecutor vigilantly examining each case and each defendant for the opportunity to make a positive impact, while balancing these considerations against the safety of the community, the welfare of any victim, and the ends of justice. It’s hard work, but it makes for a better and more just system.
I believe, also, that this approach is the legally correct one. Consider this passage from the Texas Penal Code:
Pen. §1.02 Objectives of Code
The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives:
(1) To insure the public safety through:
(A) The deterrent influence of the penalties hereinafter provided;
(B) The rehabilitation of those convicted of violations of this code; and
(C) Such punishment as may be necessary to prevent likely recurrence of criminal behavior;
(2) By definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation;
(3) To prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders;
(4) To safeguard conduct that is without guilt from condemnation as criminal;
(5) To guide and limit exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; and
(6) To define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.
There it is, in black and white: “recognition of differences in rehabilitation possibilities among individual offenders.” Sometimes you just have to go back to the source to be reminded of what is important.
Our legislature has made it pretty clear that our penal system, among other important considerations, is intended to encourage the recognition by prosecutors, judges, law enforcement officers, and criminal defense attorneys, of different rehabilitative needs of individual defendants in crafting appropriate dispositions of a criminal cases.
Prosecutors wield enormous, potentially life-altering power. In my experience, too many prosecutors take the easy approach: if it lands on my desk, my job is to get the heaviest sanction possible out of the case. The problem with that approach is that it is contrary to a prosecutor’s oath to do justice; it is contrary to the legislature’s intent in enacting the Penal Code; and it’s lazy. My greatest frustration as a criminal defense attorney is dealing with a prosecutors who see prosecution as just a job and don’t really care about the individual citizen accused. Thankfully, there are many prosecutors who really do go the extra mile to make sure that the right thing happens in a given case. That’s when the justice system works real justice. And a careful and thoughtful prosecutor can make a real difference in the lives of good people who make mistakes.
At the end of the day, prosecutors just need to remember, and appreciate, that they are dealing with human beings, not just files.