Unlike other prosecutors who worked themselves up into a fury over how the defendant was the worst possible person who should be given the harshest possible sentence, I really never gave a shit about sentencing and I can't recall ever arguing over it.
My rationale was that it was the judge's job to fashion a sentence as best he saw fit and he didn't need any back seat driving from me. But the truth of the matter is that the whole thing seemed rather pointless, rather like swatting flies at a picnic. Of course, society couldn't be expected to do nothing at all when its rules were flaunted; but a longer or shorter sentence wasn't going to make any difference and wasn't going to cure anything. If one miscreant was "taken off the streets" there would, as sure as the sun rises, be another one on the street on the morrow. So let others argue over pointlessness.
I may have opposed waiving a fine or something in drunk driving cases. I recall one attorney arguing that I should give his client a break on the fine because he had already paid a hefty legal fee. My reply was: "Why don't you give him a break on your fee?"
I just liked winning trials, but i never deluded myself into thinking that I was doing much, if any, good.
Most prosecutors did not share in my laissez aller attitude. They saw themselves as Lord Protectors, upholding the very foundations of society and, worse yet, cleansing the world of evil. The defendant on trial became the object of their crusading wrath and inflicting pain (which is what poenishment is) on him became their overriding purpose and raison d'etre.
For them, every criminal at bar was the worst of the worst who deserved the worst society could meet out in retribution. "They are just animals!." This attitude seemed to me to be lacking in all discrimination. I tended to agree that the men (and it was mostly men) we prosecuted were just animals. But that, it seemed to me, mitigated in their favour.
I remember one morning riding the elevator up to the courts. Crowded into the box were: myself, one of our judges, a defence attorney, a criminal in chains and his jailer. We all stared away from one another as if ashamed of something. Indeed. We were all equally human beings trapped in a box headed to the same place. "What shall I be pleading when the just are mercy needing?" What, I asked myself, was the difference between us, the difference that made for the difference in our fated positions?
I took a quick look at the defendant -- a young, somewhat pleasant, ordinary looking man. He certainly didn't appear to be a Saturnian monster. The thought suddenly crossed my mind, in one of those intuitively clear ways, "He's missing a screw." A screw most of us have that enables us to .. to what? to understand causality? the difference between impulse and consequence?
Some people say that criminals lack empathy. I am reluctant to put it that way. Criminals often have highly structured senses of right and wrong and loyalty. It is rather that their sense of identification with a fellow human being fails to fire at the right time. The criminals who consistently and periodically fail to empathize with their fellow human beings are the big time racketeers who are engaged in the crimes known as "banking," "commerce" and "business." Most prosecutors don't go after those criminals and, if they did, they would bring the country down.
It occurs to me now that "Criminal Justice" is really just a form of sacrifice, like ripping hearts out for Huitzilopochtli or tossing babies into the fire for Moloch. It is something we have to do because... because...because it we don't the heavens will fall.
At the time, my attitude then was that it was just a game like cops and robbers. The gist of the matter was to keep the whole thing -- on both sides -- within reasonable, sporting bounds. So long as the crime was not utterly depraved and cruel there was no point in getting all worked up over it.
In fact, before the irredentists got hold of it, the system as a whole operated on a kind of sporting principle. Most felonies were punished by a range of 16 months to six or seven years, with the mid-term of 2 or 3 the most common. With good conduct half time, that resulted in a prison sentence of about a year and half or less with credit for time served prior to trial. It wasn't that different from tackling the robber and making him eat some grass.
All that changed when MADD -- Mothers Against Drunk Driving -- hit the scene. Their intent was to "tighten" the screws against drunk drivers, not only by increasing the penalties but by making it impossible for a jury to acquit.
It had been the law, that no matter how high a driver's blood alcohol was, the jury could still acquit if it believed that, pickled as he was in alcohol, the driver's driving ability was not impaired. No more. After MADD got hold of the system: three drinks and you're out.
There was only one small problem with this approach: it rendered the entire process of jury trial utterly irrelevant. If you were going to punish people on the basis of a machine read out, why bother with all the rest? In fact, why criminalize it at all?
What MADD did, in a subtle but ineluctible way, was set the criminal justice system on a course where it was regarded as a mere mechanical device for wreaking ever harsher punishment in the name of victim vindication. There was a direct line from three drinks and you're out to three strikes and you're out.
The entire system got calibrated so as to find more and more lockstep ways to inflict maximum punishment with minimal chance that someone might -- oh horror of horrors -- fall through the cracks.
It would require too many pages to detail all the ways that this policy of irredentism took place. It was, suffice to say, the result of persistent efforts, by prosecutors, legislators and judges, geared to inflicting maximum punishment on as many occasions and for as many reasons as possible.
Not only were sentences increased, but a form of creative accounting allowed them to be doubly and triply increased. For example, in California it is a crime to assault a person with a gun. That crime is "enhanced" with an extra additional term of imprisonment for "personally using a gun during the commission of a crime." The courts see no problem with this.
Half the time, when I was prosecuting, we had only half an idea whom we were prosecuting. Records in general were, to put it, lax. People could easily get multiple drivers licenses. Interstate records were laxer still. Every D.A.'s office had its teletype machine which rattled out a "yellow sheet" of a name's criminal record. To say it was "incomplete" would be an understatement.
With the advent of computers in the 80's, things got "tightened up." Not only was there no place to run, there was no place not to have come from. People were tagged for life and could never escape their past. This enabled the system to punish them for their past.
It had been a commonplace dictum that "do the crime, do the time." It was a pay-as-you-go system. Now, it became a payment with compound interest. For every crime committed, the defendant paid for that crime, plus a kind of surcharge for the previous bought and paid for crime. The courts had no problem with this either. Pages of sophistical burble blathered away "double jeopardy" issues. On no! he's not being punished for the prior crime. Fie! Fie. He's being punished for being an habitual criminal, in addition to being punished for the current crime.
In this manner the system subtly shifted from punishing for crime to punishing the defendant for being a criminal type. The doctrine of criminal types has always been resorted to by the most totalitarian of regimes and once that became incorporated into our criminal law, our courts lost their liberal character.
One of the rationales used to justify this prosecution on steroids was that the "rights of victims" were being ignored. Actually they were, and rightly so. The entire theory of criminal law -- in England deriving from Norman times -- was that public crime violated the "King's Peace." It had nothing to do with violating Ethelred's enclose or trespassing on Tristan's wife. The harm was not to an individual but to that abstraction called the peace of the realm.
In the older Saxon system, all "crime" was personal. If you stole someone's cow you paid for it and for the doing of it. Alternatively, you got to be the victim's slave for a term of years doing all sorts of humiliating things at his beck and call. Or, he had the right to cut off your hand. But whatever the case, it was between miscreant and aggrieved. There was a lot of practicality and wisdom in this system and it still survives in our civil law.
The idea of some abstract crime to "society in general" is a very tenuous one indeed. It is hard to see how the robbery of a gas station harms everyone. The syllogisms to extract a harm that "everybody pays for" if only in the amount of 0.00072 cents per occurrence is rather stretched to say the least.
Alas, the law of the King's Peace is here to stay. But, if so, then one ought to be consistent. The role of the criminal law is not to vindicate the victim or to give the victim his revenge (or as it is more evasively put, his "closure"). The role is to restore the King's Peace and the victim is but a witness in this affair. If the victim wanted to pursue his or her personal revenge he could take the case to civil court and sue for damages. And this was the traditional view up until the 1980's
The problem was that as the sentences got longer and longer, the chances of getting damages from the defendant became more and more remote. Instead of limiting the criminal side of the system, it got extended so as to incorporate and represent victims as such. Private "restitution" got built into the criminal penalty scheme.
Worse yet, "victim advocates" began to participate in the trial and "victim comfort poodles" got to accompany the victim to the stand -- all of which tended to turn the trial into a victim weepfest. Still worse, in certain types of cases, cross examination of victims was legally limited and "expert testimony" which effectively vouched for the "truth" of the victim's story to admitted into evidence.
The ultimate result is a system which maximizes the criminality of any misconduct and which strives to impose the maximum amount of punishment for that enhanced criminality, all the while turning the trial into an emotional cleansing process of Victim Vindication.
What good does this actually do? None that I can think of except that it enables prosecutors to sleep snug and sound wrapped in the conviction that they have brought God's justice down from Heaven to Earth. The attempt to do, like Satan's original pride, only creates hell on earth.
My rationale was that it was the judge's job to fashion a sentence as best he saw fit and he didn't need any back seat driving from me. But the truth of the matter is that the whole thing seemed rather pointless, rather like swatting flies at a picnic. Of course, society couldn't be expected to do nothing at all when its rules were flaunted; but a longer or shorter sentence wasn't going to make any difference and wasn't going to cure anything. If one miscreant was "taken off the streets" there would, as sure as the sun rises, be another one on the street on the morrow. So let others argue over pointlessness.
I may have opposed waiving a fine or something in drunk driving cases. I recall one attorney arguing that I should give his client a break on the fine because he had already paid a hefty legal fee. My reply was: "Why don't you give him a break on your fee?"
I just liked winning trials, but i never deluded myself into thinking that I was doing much, if any, good.
Most prosecutors did not share in my laissez aller attitude. They saw themselves as Lord Protectors, upholding the very foundations of society and, worse yet, cleansing the world of evil. The defendant on trial became the object of their crusading wrath and inflicting pain (which is what poenishment is) on him became their overriding purpose and raison d'etre.
For them, every criminal at bar was the worst of the worst who deserved the worst society could meet out in retribution. "They are just animals!." This attitude seemed to me to be lacking in all discrimination. I tended to agree that the men (and it was mostly men) we prosecuted were just animals. But that, it seemed to me, mitigated in their favour.
I remember one morning riding the elevator up to the courts. Crowded into the box were: myself, one of our judges, a defence attorney, a criminal in chains and his jailer. We all stared away from one another as if ashamed of something. Indeed. We were all equally human beings trapped in a box headed to the same place. "What shall I be pleading when the just are mercy needing?" What, I asked myself, was the difference between us, the difference that made for the difference in our fated positions?
I took a quick look at the defendant -- a young, somewhat pleasant, ordinary looking man. He certainly didn't appear to be a Saturnian monster. The thought suddenly crossed my mind, in one of those intuitively clear ways, "He's missing a screw." A screw most of us have that enables us to .. to what? to understand causality? the difference between impulse and consequence?
Some people say that criminals lack empathy. I am reluctant to put it that way. Criminals often have highly structured senses of right and wrong and loyalty. It is rather that their sense of identification with a fellow human being fails to fire at the right time. The criminals who consistently and periodically fail to empathize with their fellow human beings are the big time racketeers who are engaged in the crimes known as "banking," "commerce" and "business." Most prosecutors don't go after those criminals and, if they did, they would bring the country down.
It occurs to me now that "Criminal Justice" is really just a form of sacrifice, like ripping hearts out for Huitzilopochtli or tossing babies into the fire for Moloch. It is something we have to do because... because...because it we don't the heavens will fall.
At the time, my attitude then was that it was just a game like cops and robbers. The gist of the matter was to keep the whole thing -- on both sides -- within reasonable, sporting bounds. So long as the crime was not utterly depraved and cruel there was no point in getting all worked up over it.
In fact, before the irredentists got hold of it, the system as a whole operated on a kind of sporting principle. Most felonies were punished by a range of 16 months to six or seven years, with the mid-term of 2 or 3 the most common. With good conduct half time, that resulted in a prison sentence of about a year and half or less with credit for time served prior to trial. It wasn't that different from tackling the robber and making him eat some grass.
All that changed when MADD -- Mothers Against Drunk Driving -- hit the scene. Their intent was to "tighten" the screws against drunk drivers, not only by increasing the penalties but by making it impossible for a jury to acquit.
It had been the law, that no matter how high a driver's blood alcohol was, the jury could still acquit if it believed that, pickled as he was in alcohol, the driver's driving ability was not impaired. No more. After MADD got hold of the system: three drinks and you're out.
There was only one small problem with this approach: it rendered the entire process of jury trial utterly irrelevant. If you were going to punish people on the basis of a machine read out, why bother with all the rest? In fact, why criminalize it at all?
What MADD did, in a subtle but ineluctible way, was set the criminal justice system on a course where it was regarded as a mere mechanical device for wreaking ever harsher punishment in the name of victim vindication. There was a direct line from three drinks and you're out to three strikes and you're out.
The entire system got calibrated so as to find more and more lockstep ways to inflict maximum punishment with minimal chance that someone might -- oh horror of horrors -- fall through the cracks.
It would require too many pages to detail all the ways that this policy of irredentism took place. It was, suffice to say, the result of persistent efforts, by prosecutors, legislators and judges, geared to inflicting maximum punishment on as many occasions and for as many reasons as possible.
Not only were sentences increased, but a form of creative accounting allowed them to be doubly and triply increased. For example, in California it is a crime to assault a person with a gun. That crime is "enhanced" with an extra additional term of imprisonment for "personally using a gun during the commission of a crime." The courts see no problem with this.
Half the time, when I was prosecuting, we had only half an idea whom we were prosecuting. Records in general were, to put it, lax. People could easily get multiple drivers licenses. Interstate records were laxer still. Every D.A.'s office had its teletype machine which rattled out a "yellow sheet" of a name's criminal record. To say it was "incomplete" would be an understatement.
With the advent of computers in the 80's, things got "tightened up." Not only was there no place to run, there was no place not to have come from. People were tagged for life and could never escape their past. This enabled the system to punish them for their past.
It had been a commonplace dictum that "do the crime, do the time." It was a pay-as-you-go system. Now, it became a payment with compound interest. For every crime committed, the defendant paid for that crime, plus a kind of surcharge for the previous bought and paid for crime. The courts had no problem with this either. Pages of sophistical burble blathered away "double jeopardy" issues. On no! he's not being punished for the prior crime. Fie! Fie. He's being punished for being an habitual criminal, in addition to being punished for the current crime.
In this manner the system subtly shifted from punishing for crime to punishing the defendant for being a criminal type. The doctrine of criminal types has always been resorted to by the most totalitarian of regimes and once that became incorporated into our criminal law, our courts lost their liberal character.
One of the rationales used to justify this prosecution on steroids was that the "rights of victims" were being ignored. Actually they were, and rightly so. The entire theory of criminal law -- in England deriving from Norman times -- was that public crime violated the "King's Peace." It had nothing to do with violating Ethelred's enclose or trespassing on Tristan's wife. The harm was not to an individual but to that abstraction called the peace of the realm.
In the older Saxon system, all "crime" was personal. If you stole someone's cow you paid for it and for the doing of it. Alternatively, you got to be the victim's slave for a term of years doing all sorts of humiliating things at his beck and call. Or, he had the right to cut off your hand. But whatever the case, it was between miscreant and aggrieved. There was a lot of practicality and wisdom in this system and it still survives in our civil law.
The idea of some abstract crime to "society in general" is a very tenuous one indeed. It is hard to see how the robbery of a gas station harms everyone. The syllogisms to extract a harm that "everybody pays for" if only in the amount of 0.00072 cents per occurrence is rather stretched to say the least.
Alas, the law of the King's Peace is here to stay. But, if so, then one ought to be consistent. The role of the criminal law is not to vindicate the victim or to give the victim his revenge (or as it is more evasively put, his "closure"). The role is to restore the King's Peace and the victim is but a witness in this affair. If the victim wanted to pursue his or her personal revenge he could take the case to civil court and sue for damages. And this was the traditional view up until the 1980's
The problem was that as the sentences got longer and longer, the chances of getting damages from the defendant became more and more remote. Instead of limiting the criminal side of the system, it got extended so as to incorporate and represent victims as such. Private "restitution" got built into the criminal penalty scheme.
Worse yet, "victim advocates" began to participate in the trial and "victim comfort poodles" got to accompany the victim to the stand -- all of which tended to turn the trial into a victim weepfest. Still worse, in certain types of cases, cross examination of victims was legally limited and "expert testimony" which effectively vouched for the "truth" of the victim's story to admitted into evidence.
The ultimate result is a system which maximizes the criminality of any misconduct and which strives to impose the maximum amount of punishment for that enhanced criminality, all the while turning the trial into an emotional cleansing process of Victim Vindication.
What good does this actually do? None that I can think of except that it enables prosecutors to sleep snug and sound wrapped in the conviction that they have brought God's justice down from Heaven to Earth. The attempt to do, like Satan's original pride, only creates hell on earth.
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