How much control do we really have?
Mark Bennett and Scott Greenfield have both recently posted recently on the role a defendant's children should play in sentencing. It started with discussion about one of the first responses prosecutor's are taught: "he didn't care about his children when he committed the offense, so why should be care about them now?" I want to throw out another of those learned responses: "just because he grew up without a father (or poor, or on the wrong side of the tracks) doesn't give him an excuse to commit a crime".
I just finished a trial where the only issue was punishment. I spent a lot of time addressing his upbringing, including his regular trips to juvenile detention. I don't want to go into details, but his upbringing was horrible, which was made worse by the fact that he was mildly retarded. In response, the State claimed it was insult to all those who came up in similar situations and made something of themselves. They also used another of their taught responses - he knew right from wrong, along with you can't help someone who doesn't want it.
Normally you see this come up in death penalty cases, when much of the focus is on mitigation. Mitigation has a place in other cases also, and in my opinion we out to spend more time on it. That's another post though.
Like the argument about children, the response here makes some sense. After all, a lot of people who come up in bad environments don't go on to become career criminals. Some even go on to achieve great things, and excel. You also can't argue with the statement that a bad childhood (or mental retardation) isn't an excuse for criminal activity. No one seriously suggests it is an excuse. However, it can be explanation for some behaviors.
People are more than their upbringing, but it is still part of them. You cannot truly understand a person without knowing something about their past. To ignore that flies in face of reason. Their past may provide into their behavior, and it is foolish to ignore it. It also provides insight into their future, and may help predict the chances of rehabilitation.
I know there are prosecutors who have come up through difficult circumstances. Many though are children of privilege. They cannot empathize with the things many of the defendants they prosecute. Instead, the pass judgment, often with arrogance and self-righteousness. I'm willing to bet you that more than a few of those same prosecutors would be sitting in the defendant's chair if they were brought up in the same environment and under the same circumstances.
No one can dispute that the incident of criminal behavior is higher in certain socio-economic groups. The crime rate is higher in the inner city than in the suburbs. If background and upbringing don't contribute to behavior, then how can you explain that?
I have been practicing long enough to know that there are some people who are never going to change, and there is nothing you can do. Society can only protect itself by locking them up. I also know, though, that some people can change, if they only have the guidance and the opportunity. Many only want a chance, and need someone to help them. You can't identify those people without knowing something about them.
For those who profess to be Christians we are told that we will be judged by how we treat those who are the least among us. Prosecutors should remember that more often. And for the next case, try to come up with something more original, and something that actually addresses the issue.
