Sincerity, Situational Sincerity, & Exploiting Children

Both Defending People and Simple Justice have knocked around the idea of the callousness of prosecutors when it comes to the children of an offender.

Defending People starts the ball rolling by linking to a site wherein prosecutors were airing their collective irks from defense attorneys.

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."
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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.

Simple Justice is ever so slightly more sympathetic to the prosecutor's position

This is the pat response of all prosecutors, everywhere. Ask any criminal defense lawyer and they'll tell you that they have received this reaction, no matter what permutation of words, a thousand times. It's one of the first things a young prosecutor learns when being taught to relinquish his humanity.
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But truth be told, the pat response isn't without some degree of merit, which is why it has such longstanding, albeit superficial, appeal. Like the religious conversions brought about by the slamming of a cell door, it smacks of convenience. The epiphany of concern for one's children far too often comes after the deed, and the facile use of an infant's photograph flies in the face of the selfishness demonstrated by a defendant before the cops slapped the cuffs on.

Go read their posts, then come back here to get my response.

My permutation of this particular phrase goes like this: "Every person about to go to jail suddenly finds God, develops a terrible ailment, just got a job, has a job interview tomorrow, and/or suddenly realizes she has family responsibilities which no one else can fulfill." I've used some version of this statement at least 100 times since I've been a prosecutor. And, yes, the reason I say it is because I am terribly evil.

Oh, wait a sec, no it is not.

The reason I say it is because there is great amount of truth to be found in the statement. It's not the truth as Mark translates it - "the defendant didn't think about his kids when he committed the offense, so I shouldn't have to think about them now." The better rephrase is this: "Your client didn't think about her kids when she committed the offense and I don't believe she is now either." The offender is selling an excuse to avoid the punishment assigned under the law she has broken. The excuses are almost always variations on what I laid out above and most of them are irritating; nevertheless, they are part of the process. However, the suddenly discovered familial allegiance is the most vexing of the excuses.

God can take care of himself; personally, I believe that a lot of the jailhouse conversions are real - I just don't believe they'll stick once the offender is back on the street. The medical and job excuses are mostly limited to the offender herself; they're also pretty easy to prove or disprove. The children excuse is in its own class of despicability.

It's not that I'm upset that the offender wasn't thinking about the kids when she committed the crime. I'm peeved because I don't believe the offender is thinking about the kids now. She has been told by her attorney that she's going to jail for 6 months and she's flailing around for an excuse, any excuse, which will keep that from happening. What's the one thing only the most heartless of prosecutors and judges could possibly ignore? The harm which shall befall the children. She can exploit the children explain how the children need their mother and surely the sentence will change to straight probation or less time or maybe weekend jail time. It's got to help her somehow.

Let's be clear here, the offender in question (at least in Virginia) isn't the first timer who, in a mid-life crisis moment, at the age of 40 decided to see if she could scoot out the door of Mega-Store with the items in her cart. The first time, probably even the second, maybe even the third, that someone commits a minor offense she isn't going to be incarcerated. To become incarcerated she has either established a pattern of law breaking or done something very serious. Most defense attorneys aren't going to come to me in an abduction and aggravated malicious wounding case and try to sell me on the idea that their client shouldn't go to prison for 10 years because she has to take care of her kids. This doesn't mean the offender hasn't tried to get them to sell that; it just means they know it's not going to be a relevant factor after she shot a store clerk 3 times. So, the offender the defense attorney is telling me is such a wonderful and necessary part of her family has been convicted at least 4 or 5 times. It's going to be an extremely hard sell.

Yes, I know from personal experience that a few of these offenders are sincere. Admittedly, I wonder in how many cases that sincerity is retained once the offender gets home; too often, once the crisis is over the passionate concern and desire to do the right thing fades. In any event, it is basically impossible for me to judge who is being sincere, whose sincerity is more than situational, and who is blatantly exploiting the children for her own gain.

Remember, I don't have the access to the offender that her attorney does. Let's assume that 10% of the offenders are sincere and not just trying to exploit their children for personal gain or feeling situational sincerity ( most probably a high estimate). Even if the defense attorney can sort out who is who, he has a duty to try and sell his client's position whether he believes it or not. So, I hear the same pitch 10 times, knowing it is bogus 9 of them and it is very difficult to sort them out. The default is going to be the belief she's trying to exploit her children.

The things the defense attorney will show me are not things which will change my opinion of the offender. Invariably, I will be told of the problems which will occur for the children. Wanna make me not happy? Start telling how your client's act is going to result in the victimization of her own children; then tell me she should catch a break because she is causing the victimization of her own children. Yes, that'll make me really want to give her a break.

There is no real solution here. Scott is correct both when he points out that the children must be considered and when he states it is unfair to punish someone else for not having made the choice to have children. In the end, I have to come down to what I think are my two primary responsibilities: Protect the citizenry from the individual offender and dissuade others from breaking the law. Neither of these are accomplished if I do not put the offender in jail. In jail she cannot steal for 6 months and others who hear that she went will (hopefully) be discouraged from doing the things which she did.