WE Live Sheltered Lives

I’ve taken some criticism for my belief that Harris County Prosecutors (and judges) are typically deficient in the real-world experience that leads to perspective and empathy.

Quoth AHCL:

But as to Mark’s argument about “real world experience” outside of the prosecutor’s office being a bonus to being a criminal District Court Judge, I do actually disagree. The only exception to that is that I do think that a District Court Judge with both prosecution and defense experience would be good. However, I don’t think that if that Judge had been an accountant, or perhaps even a, um, police officer that it would benefit them as a judge.

I guess the only major gripe I have with Mark is the use of the term “sheltered” when he describes prosecutors. I would strongly argue that prosecutors (and defense attorneys as well) are probably the least sheltered members of any community they reside in, just by the mere fact that they are the ones who truly see the underbelly of their society.

An anonymous prosecutorial correspondent (call him “Itarian) wrote, “I want you to know that I read over that post about “sheltered prosecutors,” which, kernel of validity aside, was condescending enough . . .” I’m not sure to what post Itarian is referring — I’m sure I’ve called prosecutors “sheltered” more than once, but I can’t find the term in a search of my blog posts. My calling prosecutors sheltered might well seem condescending to someone who sees criticism as judgment. I don’t; most baby prosecutors are no different than most baby criminal-defense lawyers or, for that matter, than I was at 25.

When we come out of law school we are, by and large, middle class kids with no experience dealing with the real world. There’s a sharp contrast between us — especially those of us who went from high school to college to law school — and the vast majority of the people with whom we share the criminal courthouse (whether as defendants or as complainants). Here are some of the ways in which we are more fortunate than most.

If baby prosecutors are sheltered and baby defense lawyers are sheltered, what’s the difference?

First, baby defense lawyers aren’t trying to make people’s lives harder. For all their talk about helping victims, prosecutors aren’t engaged in a restorative profession. They have a limited set of tools, almost all of which are punitive. We can debate whether prosecuting one person might make someone else’s life better (there are cases in which that is undoubtedly true, and many more in which it is questionable at best), but there is very rarely any doubt that a criminal prosecution makes its subject’s life worse.

Unless they are sociopaths, prosecutors have to believe that there is some greater goal to be served in deliberately making another human being’s life more difficult. The easy way to justify punishment is that the person whose life is being made worse deserves it. I hear this from misdemeanor prosecutors every day — even from 25-year-olds. But a 25-year-old chlid with a law degree has no idea what other people deserve. If anyone has any idea what other people deserve, it’s not a 25-year-old. The 25-year-old defense lawyer is at least not trying to impose his nascent sense of justice on anyone else.

When I say “real-world experience” I don’t mean “seeing the underbelly of society”; I mean “getting your butt kicked by the world.” For most people in the world, life is hard — much harder than it is for us lawyers. The rest of them worry about whether they’re going to be able to make rent, or pay the medical bills, or repair the car, or even buy gas next week. They win some and they lose more. They don’t have government jobs with assured paychecks and benefits.

Most prosecutors and judges I know have never really been out in the real world; they would benefit greatly from having their butts kicked by the world a few times. They claim empathy for the victims; I don’t doubt that they feel sympathy, but empathy is something that you have for everybody or for nobody (it’s also something that you don’t know you lack if you lack it). Sympathy for victims is easy, but a lawyer with empathy feels for both the complainant and the accused. Some very, very good people do some very bad things, and some very bad people have very, very bad things done to them. There usually is very little difference between the complainants and the accused — much less difference than between either group and the lawyers. (What are the odds that the accused in an ASAC case was molested as a child? Pretty near 100%.)


Almost all of us have it easier than the people we’re dealing with, but a lawyer who had to make her own way between high school and college, or between college and law school, is likely to have a little more real-world experience than one who didn’t.

What about 10 years down the road, or 20, or 30? All of us — even the prosecutors — naturally get beaten up a bit as we get older. We get sick, make mistakes, have accidents, get hurt, hurt people, lose things, lose loved ones. That’s what makes us, like the velveteen rabbit, real. The more we try to insulate ourselves from life’s slings and arrows, the less we feel them and the less we grow. Prosecutors, with their regular paychecks and their health insurance and their pensions and their (until last January) assured employment for life, are even better insulated from those slings and arrows than are lawyers who are self-employed.

Empathy for everyone — accused, complainant, cops, judge, adversary — makes a better lawyer on either side of the courtroom. If you haven’t walked in the shoes of the people you’re dealing with, the first step in developing empathy is to realize how much more fortunate you’ve been than they, and how. If you want to feel empathy, “there, but for the grace of God, go I” is a good place to start. It should be engraved on the bench of every criminal court judge in the country: not facing the audience, but on the other side, where the judge can read it.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in luck, privilege, Prosecutors and tagged . Bookmark the permalink.

17 Responses to WE Live Sheltered Lives

  1. Ron in Houston says:

    Well, one of the advantages of being older (or ancient as I believe one blogger put it), is that you get exposed to more.

    We all suffer from this form of myopia. A big part of getting past it is admitting that you suffer from it.

  2. sctexas says:

    “…prosecutors have to believe that there is some greater goal to be served in deliberately making another human being’s life more difficult. The easy way to justify punishment is that the person whose life is being made worse deserves it.”

    Do you actually think that punishing someone for committing a crime is simply the prosecution’s way of “trying to make their life difficult”?? Seriously?

  3. Mark Bennett says:

    SC,

    No, of course not, which is why I didn’t say that.

    There are all sorts of justifications — some good (deter him from doing wrong again), some not (get even with him) — for deliberately making someone’s life more difficult.

  4. Tarian says:

    Mark, you say some of these things so convincingly I sometimes catch myself believing your BS. Maybe that makes you a great lawyer.

    I guess since I was quoted, I’ll post a followup. I think I’ll go with Tarian as a handle, though “I, Tarian” could work, kind of like, “I, Claudius.” But I digress…

    The most condescending and by equal measure absurd part of the above post is the implication — nay, the ASSERTION — that somehow prosecutors and judges (presumably those who have never been anything other than prosecutors or judges) are not in “the real world.”

    Where is the real world, then, if it is not fighting crime and the forces of evil in the courtroom? (Oh, yeah, when the stoner set in your audience wakes up a few hours from now, that is really going to rile them up.) Should we all have a mandatory 3-year stint as wrecker drivers between law school and joining the DA’s office?

    Or perhaps you are suggesting that we should have a constitutional right not only to a JURY of our peers, but also a PROSECUTOR who is a peer? Just think, we could assign ADAs to cases based on the ADA’s race, socioeconomic standing, and even criminal history! After all, who is better in position to decide what an aggravated robber deserves than a prosecutor who has been to the pen for the same thing? An absurdity, to be sure, but it’s the logical result of your progression.

    Our justice system depends upon the frail, uneven efforts of human beings, and as such it will always be flawed. It will also always be subject to the same vagaries of any human endeavor in that the experiences and discretion of each prosecutor can be dramatically different. Need we add the weight-loss disclaimer to our justice system that “individual results may vary?”

    Prosecutors, whether they are 25 and right out of school or 45 and right out of real estate, are sworn to seek justice. It is a lofty goal but not unattainable and we take them at their word that they will do so to the best of their ability. Empathy is nice, but we are not sworn to seek that. The community has established rules of conduct, and there must be penalties for those who transgress those rules. Hopefully, at least in minor cases, the penalty will be only sufficient to rehabilitate the offender and deter the same conduct in the future. In major cases, the penalty needs to not only punish the offender [does he mean-- gasp!-- RETRIBUTION??? Horrors, to the batpole, PJ!] but also protect the community from the offender. In the latter cases, a little misplaced “empathy” can do a lot of damage.

    So are we sheltered? Sure. Do we need empathy? All of us do. We also need justice and a sense of personal responsibility for our actions. Prosecutors and judges DO live in the real world…but some of us view that reality very, very differently than you.

  5. Ron in Houston says:

    Tarian has the hyperbole generator working overtime. He/she also has a very pompous tone to their writing.

    Mark has a point. One of the jokes I always make is that we should make Judges do a month a year practicing law so they remember what it was like.

    Judges sit up on their raised bench, put on their nicely pressed black robes and then forget that their crap stinks like everyone else and they put their pants on one leg at a time.

    I’ll close with a story. A particular family judge ran on a “zero tolerance” policy for child support. (I won’t go into the merits of calling yourself a “judge” when you have such a policy) Finally her bailiff explained to her that putting these people in jail for 90+ days causes them to lose their jobs, their living arrangements, and often their mode of transportation. After that frank dose of reality therapy she began to see that perhaps it’s not such a good idea to throw everyone in jail who is behind on their child support.

  6. It’s all about perspective: something that builds with having had a variety of experiences.

    Most good business schools do not admit MBA students until they’ve been out on their own, working, for at least a few years. I have long argued that law schools should have a similar policy. A law license alone, much less an appointment as an ADA, is simply too much power to give someone who has never experienced the feeling of being powerless and unprotected.

    Why? Because of the lack of perspective. Until you can see things from more than one, rigidly defined angle, your judgment inevitably stinks. Requiring a few years experience supporting oneself prior to admission to law school would go along way to resolving that problem.

    I remember, as a first year, 36 year old law student, having a 3L who thought she knew everything telling me “I think we have to trust the people who protect us.” Er, yeah. No reason to believe she was sheltered!

    She went on to become a prosecutor, I believe. Can you believe someone with that approach could objectively judge the validity of a case? Of course not. A few years dealing up close and personal with the unwashed masses would do her a world of good.

    BTW, those prosecutors who think they know all about our clients because they’ve prosecuted them: how many of you have sat down and really talked to a single defendant? Gotten to know what they’ve done, why, or what sort of pressures they were under when they did it? Tried to see the world from their viewpoint?

    Getting to know a few people from the “client class” would do them a world of good. I would say that a prosecutor who cannot understand what motivates the defendants they prosecute is unable to fulfill their oath to seek justice. That is pretty much a hollow oath, anyway: when was the last time a Texas prosecutor was disciplined for seeking something other than justice? Never.

  7. David says:

    I represent a 24 year old in a termination of parental rights case right now and the childless, late 20’s prosecutor and guardian ad litem can’t understand why I’m fighting for her, despite the fact that she just had her tubes tied.

    I can understand their position but what sickens me is when they ask me how long it’s going to take and complain that I’m keeping them from going to the bars.

    It took having children for me to understand what it is to lose one, so I understand why they don’t get it. Still, I think I would have understood that it’s sick to think we should be able to wrap up a fight over someone’s children in time for you to be telling war stories in the bar.

    Since these people “toil” only in juvenile court with only bench trials, with judges who used to be their colleagues in the county attorneys office, they get very used to winning.

    Thus, this fight over my client’s rights to her kids has become a pissing match where they don’t want to let me win, even if it means taking away the only parental rights she’ll ever have in the process.

    Maybe someday they’ll understand the stakes involved, but I think it’ll be too late for my client.

  8. sctexas says:

    David–what would “understanding” of your client’s situation do to change the outcome? Should the prosecutor just give up the state’s interests because your client has a stake in the outcome?

  9. Brendan Kelly says:

    Well, I’m not part of “the stoner set”, in fact I’m a veteran, an ex-GOP precienct chair (564 and 223, back in the 90’s), and law and order Conservative.

    But Mark is right. You simply can not describe someone who’s life experience takes them from Daddy’s house in River Oaks, to a Daddy financed college, to a Daddy financed law school, straight into a secure government job where they make more than the median American household income; and from there to a house in Bellare or West U., a membership in the City Club or the Downtown Pachyderms, and an eye towards political office as anything other than “sheltered”. I’m not saying such people don’t work hard or aren’t dedicated, just that their life experience is somewhat limited, no matter how tough they want to pretend to be. I would think this would be obvious.

    AHCL’s remark about prosecutors (and defense attorneys as well) being “the least sheltered members of any community they reside in, just by the mere fact that they are the ones who truly see the underbelly of their society” is akin to saying that everyone who watched Saving Private Ryan should be awarded a Combat Infantryman Badge. Sure prosecutors see horrible things, I have a friend who prosecuted child abuse cases and he dealt with stuff right out Hell itself; but at the end of the day he could close down the computer, walk out the door, and drive home to his house in the suburbs. There is a world of difference between “seeing” something and actually “been there, done that, got the T-shirt”. I am reminded of something my late father-in-law said to fat, drunk, and obnoxious Rockets fan the night they became NBA Champions. This guy was yelling “We Won the Championship! We won the Championship!”, finally my dad-in-law got sick of it and said “No, THE ROCKETS won the Championship. YOU just sat on your fat behind watching it on TV. So sit down, shut up, and finish your beer.” Since Dad-in-law had been a Golden Gloves champion, that is exactly what the drunk guy did.

    I haven’t had extensive dealings with the Prosecutor’s Office, so I don’t know if “sheltered” is the norm or not. Most of the (few) people I have met from there I met through military connections. Obviously they had “been there, done that, got the T-shirt”. Wether this gave them more empathy or not, I do not know, (though I doubt it).

    I do think that having had a life outside of the American upper middle class coccon made them better, more well rounded, and certianly less self-important people. It would be logical to assume that this made them better able to seek justice, and better at their jobs as well.

  10. Mark Bennett says:

    Thanks, all, for the thoughtful comments.

    Tarian, I like to think that you almost believe my BS because my BS is Truth that’s still just out of your reach. Empathy is never misplaced. My ability to feel for the mother of the murdered child doesn’t hurt my ability to tell part of my client’s story through her; in fact, it helps! I wish I were omniscient like you so that I could know what justice is.

    Ron, no need to call Tarian’s writing pompous. If it were, it’d be ungentlemanly to point it out. Like the rest of us, he’s doing the best he can.

    Clay, I had a law school classmate who thought that the DA represented complainants. I think she went on to work for a civil firm . . . same thing.

    David, are you saying that the other participants in your case should treat your client with the dignity due a human being, and treat his case with the seriousness due it?

    SC, I think that David is saying that . . .

    Brendan, I think there are different levels of “sheltered.” Getting shot at regularly is pretty low down on the “sheltered” hierarchy (at least for Americans); expecting to spend 25 years with the same employer and then leave with a pension is pretty high. Most of America lives somewhere in between.

  11. Ron in Houston says:

    Awe Mark, I’m really trying to play nice. Notice that I didn’t say he/she was pompous, I just said he/she had a pompous writing style.

    I’m really a nice guy, but I’m sure I probably come off as an unmitigated ass hat from time to time.

  12. PJ says:

    Shit! My effin’ batpole broke! But at least I have my bat-weed up here with me.

    See, this is precisely why Harris County needs a public defender’s office.

  13. David says:

    SC,
    I’m saying that termination of parental rights is a very blunt instrument and that there is a large risk that, because of the lower burden of proof (clear and convincing) and because there is no right to a jury trial in these cases, the government’s power over such a sacred right will not be sufficiently checked and balanced.

    When the person wielding the state’s power is in her mid 20’s with no kids and a private school education along the way, the risk that she won’t understand the stakes is very high.

    I’m not cutting her down as it took my having kids to understand what it would be like to lose one.

    Understanding would change the outcome because if she understood the stakes, or the kids’ futures, she might require my client to get services or make choices to get her kids back rather than simply taking her rights away and leaving these kids without a mother they know well and leaving my client with no rights to her kids and no ability to have more.

  14. Jeffrey Deutsch says:

    Hello Mark,

    You have some excellent points about empathy and experience. In your other post, you made a very good point about how it helps for a judge to understand people’s job prospects before deciding where they can or can’t work. I don’t know how much leeway the judge had in this particular case (a convicted felon on probation, when probation normally includes abstinence from alcohol anyway), but before telling someone – especially with a felony record – to leave his/her job it helps to understand how difficult it may be to get a new one.

    That said, you know that you and I have our views on criminal responsibility. I firmly believe in individual responsibility (just as I suspect that at least on some level you do, too). For me, that includes a strong retributive element in punishment.

    You have pointed out that deterrence is a legitimate element of punishment. Deterrence only makes sense when people, once suitably deterred, can make a choice not to do what we don’t want them to do. But when people have the power to make choices, they can choose to be evil as well as to be good.

    (Just as the lawyer in your video says that he chooses to believe in the basic goodness of people. Whatever the merits or demerits of that belief – which seems to be yours as well – it does indeed require an act of choice.)

    When people choose to behave evilly, they deserve to be punished. When, on the other hand, a judge decides to let someone off with a deferred adjudication or “just probation” – which from time to time can be a good idea – the judge has decided that the person deserves something other than the same punishment that hardened criminals get.

    Let’s also keep in mind their victims. The extent to which we punish those who have harmed them shows the extent to which we feel those victims deserve vindication. As the saying goes, “mercy to the guilty is cruelty to the innocent”.

    We don’t always feel that victims need much vindication, as with, say, a first offender for petty theft, who has given full restitution and expressed remorse. Then we may let the thief have a deferred adjudication in the hope he will reform without the millstone of a conviction record. Rape, burglary, robbery, assault and other victims, and survivors of murder victims, are a very different story.

    But we cannot escape making judgments about what people deserve.

    Of course we are imperfect human beings. For that matter, since you are a human being yourself, Mark, I am sure you cannot give your clients perfect defenses with guaranteed perfect outcomes. The day a god, or even a divine defense attorney, comes down to earth, your days as a viable lawyer are numbered. But we’re not holding our breaths, because until and unless that happens your clients are making do with the best alternative available, which in their eyes (and possibly mine if I were ever in Texas and accused of a crime) is you.

    Punishment always has a moral dimension. That’s why, for example, punishments for crimes escalate so that a first offender gets moderate punishment but a hardened criminal gets much more. The hardened criminal has proven himself to be the type of person who is “willing to pay” a moderate price for committing crimes, so we keep raising the penalty, hoping to “price him out of the market”.

    On the other hand, parking tickets, and many moving violations and other minor violations (I assume this also holds for Class C misdemeanors in Texas) have constant fines. For those things, we aren’t condemning anyone morally for having done them, we just want them to “pay the price” and of course the price is the same for them as for anyone else.

    All this applies up to and including capital punishment, IMHO. That’s a subject we’ve discussed before. You don’t think the State has a right to kill prisoners because it might make mistakes. I respectfully suggest that any monster who deserves to die but is allowed to live is also a mistake. And possibly a lethal mistake if s/he ever kills in prison or escapes.

    You have said that there are prisons in which prisoners neither kill nor escape. I presume you mean “Supermaxes,” reserved for the worst of the worst, where prisoners are kept in their individual cells for 23-24 hours a day and only allowed out for occasional showers and individual walks outside.

    Even if preventing murders of fellow prisoners and civilians were the only reasons for capital punishment – which they certainly are not – I respectfully suggest that sending every prisoner, or even every violent prisoner, to a Supermax would be unfair and unduly punitive to the large majority. I also respectfully suggest that it would be prohibitively expensive to erect enough completely secure prisons and to hire enough specially-trained corrections officers. (If you’re not concerned about how much money it would take from other government programs because you feel the government has too much power anyway, think of how much more freedom good people could enjoy without having to pay such ruinous taxes.)

    Imperfect humans operate lethal machinery (including organizations) all the time, with our blessing. Among other things, this means waging war, knowing that a certain (hopefully small) number of innocent civilians will be killed, sickened, starved, maimed and/or made homeless. That is unfortunate…but often the far lesser of many evils.

    I might also add that emphasizing individual responsibility honors – not to mention encourages – those who, despite such horrid environments as you cite (eg, poverty, child physical, sexual and other abuse, head injuries, Fetal Alcohol Syndrome, etc), manage to make good lives for themselves.

    You say that you have not seen such examples. I respectfully suggest that you could use some different kinds of experience of your own. In your line of work, you mainly meet criminals. I don’t imagine you meet too many people who just go about their lives, maybe humble, maybe unhappy at times, but still contributing to society and not to crimes that force decent people to live in fear.

    I think that for carrying such burdens and still managing to live decent lives they deserve at least some honors for having made the difficult choices they did. It’s precisely when you have empathy that you understand how much more easily they could have turned to dealing/taking drugs, robbing people, abusing their children, etc.

    I do imagine you know of some people who, with every advantage life had to offer, and whose greatest travail might have been living through birth, have chosen to do evil.

    So, in a nutshell, yes crime is to a great extent a matter of choice, and punishment always has a moral element. We can see that in criminals, their victims and those who have chosen more difficult but decent lives.

    Cheers,

    Jeff Deutsch

  15. Mark Bennett says:

    Jeff,

    I’m not sure where you get that I say I have not seen people make good lives for themselves despite poverty, abuse, traumatic brain injury or the like). That doesn’t sound like something I would say. I would say that no two people have exactly the same genes and life experience, so that comparing two people’s behavior is comparing apples and rabbits.

    I guess it’s time for the “why I am certain that free will is ultimately an illusion” post. Stay tuned.

  16. Jeffrey Deutsch says:

    Hello Mark,

    In your response to me here, you said:

    I don’t believe you have enough information to say that people have “suffered much worse environments and genetic inheritances and yet done the right thing most of the time.” If they’ve “chosen” to do the right thing, it’s because something went right in either their upbringing or their genes compared to the guy who did wrong.

    I’m sure you know that there are many families out there, some of whose members turn to violence, theft, drug dependency, welfare dependency, unwed parenthood, while others take the much more difficult (and initially humbler) path.

    By definition, they have as close to the same genes as distinct humans get (with the exception of identical twins or triplets), and the sets of siblings also have – obviously – the same parents. Yes, once in a while parents single out on child for especially good or bad treatment. But on the whole, people with the same parents have the same upbringing.

    What does that leave? The individual decisions to do right or to do wrong.

    On the other hand, if you insist on focusing on the little differences in people’s life experiences, you discover that you will always find differences, so any difference in people’s behaviors can be “explained” by differences in life experiences. Of course, that defines such differences so broadly that they can never be disproven.

    If we’re to at least have open minds for the possibility that people are not the sum totals of their genes and life experiences, we need to be recognize some range of genes and life experiences that we accept as similar. (Of course, we would also need to accept some ranges of behavior as similar, so that we accept, say, one armed robbery and two drug dealing convictions as close enough to, say, a preplanned rape and murder.)

    Then we can hold genes and life experiences constant, and see whether or not we get substantially different behavior. I myself have seen that time after time.

    As for “free will is ultimately an illusion”; let’s just say that if I weren’t quoting you verbatim, people would say I was trying to use a straw figure against you.

    Cheers,

    Jeff Deutsch

  17. Mark Bennett says:

    We don’t have enough information. We can’t “hold genes and life experiences constant” because, like it or not, we are neither smart enough nor wise enough to tell what has happened to a person or how that might have affected his personality. If you have identical twins raised in the same household, identical to all outward appearances as well as all existing instruments, you don’t know how their brains might be wired differently because of even slightly different environments.

    I await a non-tautological refutation of the proposition that free will is illusory, as well as a proof that we are more than the sum totals of our genes and life experiences that doesn’t depend on our perception of free will.

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