Prosecutors Protecting Children (But Only When It’s Convenient)
Prosecutors seem so proud of themselves when they argue, “Don’t show me photos of the defendant’s kids. He had those kids when he committed the crime and he didn’t think about them then.” The particular quote is from Jane Starnes, a former Harris County prosecutor (and Bellaire neighbor of ours) who now prosecutes in John Bradley’s office and apparently got some award from MADD recently. But they all say it, and every one of them acts like she thought it up herself.
Rephrased, the argument is this: the defendant didn’t think about his kids when he committed the offense, so I shouldn’t have to think about them now.
Defendants shouldn’t be given breaks because they have children, but children should, when possible, be given breaks. It’s okay for a prosecutor to consider the
broader implications of any resolution of a case, including the effect of the resolution on other people. More than okay, it
should be mandatory, but that may be too much to ask.
It’s also okay to reduce (or increase) a defendant’s punishment so that his kids suffer less. That’s called “compassion.” It’s even okay not to reduce the kids’ suffering when that suffering is an unavoidable collateral consequence of their parent’s crimes. But prosecutors, like the rest of us, should seek to prevent suffering when possible.
It’s not okay to inflict needless pain on people for the crimes of their parents. “You hurt them, so I don’t care about them” is retributivist twaddle of the worst sort.
If you think a harsh sentence for dad will help the children, fine. If you consider the incidental harm a harsh sentence will do to the children and decide that it’s unavoidable, that’s fine too. I won’t lose any sleep at night even if you refuse to consider the damage dad’s punishment might do to the kids.
But don’t ask me to soothe your conscience by concealing that harm from you.
About The Author
Per Fernando Tesón, I consider it a sign of empty moral posturing when someone is unwilling to acknowledge the bad consequences of their position. Doing the least-harmful thing is justifiable, pretending there’s no harm is not.
I’d wager that as tragic as it is to have a kid raised in a single-parent household, sometimes the kids are better off with just one parent.
Convicltion plus across-the-board maximum sentencing = prosecutor resume building. It has little to do with the administration of justice.
Judge Poe used to admonish Defendants to “not hide behind your kids” when they were called upon to explain their actions to him.
When I became a father, the issue of Defendants who had done really bad things but also had small children weighed extremely heavily on me. I did a post a while back on a 19 year old that I tried for murder who was given life (there were other murders he had ordered but weren’t carried out). His small son (who was about my son’s age) was in the courtroom and came up to me and smiled at me shortly after his father getting a Life sentence. It broke my heart.
If it had not been for that Little Boy I would have been nothing but pleased about the verdict. The Defendant was an extremely ruthless, and violent gang leader who had been responsible for the death of a 15-year-old kid.
But because of his Little Boy, it is one of the more tortured memories I have from being a prosecutor.
I don’t think there is an easy answer to this particular problem.
“Let not The Sins of the Father fall upon his children”. As a former prosecutor and now Judge, unless the defendant’s family was being used for an alibi (& I would imagine this all about punishment) I left them alone. Sometimes this is all the defense has at “the bottom of the barrel and they had to do what they had to do to avoid ineffective assistance. Quickest cross from a good prosecutor of the defendant’s family in punishment is: “Pass the witness Your Honor”.
The photo thing could also be used to the State’s advantage without the prosecutor “over playing” their hand. “All children associated with this defendant’s lawless violent behavior are in fact unwilling victims themselves. Let there be no mistake: Your guilty verdict applies to HIM, not THEM!” Used properly, sincere empathy can actually get more mileage for a prosecutor than just hammering away. For the defense — only doing what you can with what you have and covering own ass to boot.
Now that you’re a judge, do you still leave the family out of it? Has the prosecutor’s mantra become your personal philosophy so that the impact of children, family circumstances, whatever one chooses to cal it, is summarily ignored under all circumstances?
As a Judge, I am VERY compassionate and on a daily basis practically beg young defendants to NOT take a final conviction, but rather don’t be affraid to “be on paper with me”. You see in addition to being a former prosecutor, I am also a father who knows all to well my kids could end up on either side of the courtroom. I also do not view the people who appear before me as “cogs” but human beings. No I am not the same peson now that I am a “zebra” than when I was a “coach”.
I believe it depends on if a person is a repeat offender. I am a convicted felon who had a judge compansionate enough to give me 10 years probation instead of 15 years in prison, more than likely because I had 2 small children.
I admit I wasn’t thinking of my children one bit when I commited the crime and I admit I was a crappy parent for doing that.
Now 9 years and 8 months into my probation I have redeemed myself as a parent, went to college and have a wonderful job and family. Some people make mistakes because they just aren’t thinking about their children or themselves for that matter but something about not being able to see them again will snap you out of it and remind you that we are supposed to be models for our children.
My children would have been left with 2 elderly grandparents who would not have had the money or energy to care for them properly. They would have been punished for my crime as much as I was. So as I was given my second chance they were given an oppertunity for a better life with their mother.
I believe if you commit a crime you should be punished but I also believe that children should matter in determining what type of punishment is appropriate. I had something to go home and live for (even though my dumbass didn’t realize that before I commited the crime) and it made a difference in how I was to live my life.
I 100% believe that redemption is possible (for those who want it).
Great post. Thanks for writing that.
Bennett, pass me a kleenex.
Nice save Stacy. I’m a firm believer in 2nd chances as long as they don’t become one more last chance. Glad to hear that the judge had the wisdom to exercise a little compassion given your history and obligations.