Though I haven’t done any surveys, I have the arrogance to try to jump into the minds of those who have been formally accused of a crime and analyze what they think of our criminal justice system. My analysis is based on my experiences and observations as a public defender and later a prosecutor. As one with deep respect for and a desire to uphold constitutional principles, I often find myself hoping that a defendant will begin or continue to admire and uphold constitutional principles themselves, even when his or her case has not gone as hoped for. I also hope that they don’t hold their disappointment too harshly against the judge and/or prosecutor. I am surrounded by judges and prosecutors who I believe are respectful of defendants. They show concern for defendants’ futures, and they acknowledge that defendants have the right to a trial. That said, when I was a public defender I would avoid telling defendants about how the prosecutor is a good person; I have found that those comments are understandably ill-received by people whose lives have been turned upside down by the charges against them.
Perhaps even with our best efforts, those accused of breaking the rules of the system will not defend and love our constitutional system as much as I do. But could we do a little better at earning their respect for this system that we are a part of? The idea I offer is to pass less judgment.
Passing Less Judgment
If you’re like me, you may like that this suggestion is in the negative form. With the frantic busyness of husbanding, fathering, lawyering, etc., I generally do not want a suggestion to do more unless it comes with a good suggestion about what I might do less of. This suggestion is mostly about doing less--less judging.
Defense Attorneys
Defense attorneys can reduce moral judgment of defendants more completely than most professionals in the system. Similar to how I do not need to analyze every little detail of how my wife is handling a situation before I show her my strong support and encouragement, I do not need to pass judgment on everything my clients have done and are currently doing prior to showing empathy and support for their objectives. While clients are not like close friends or family in many ways, with regard to the case at hand I as their advocate hope to be as knowledgeable and supportive as their loved ones are.
Having an attorney who maintains a negative judgment throughout a case could certainly leave a client feeling helpless. To help understand how unfairly treated a defendant would feel with an attorney who harshly judges or tries to manipulate a client’s choices, you might compare an attorney, who exercises legal rights on behalf of a client, to an interpreter, who speaks on behalf of someone. Obviously a client would feel helpless in a system with an interpreter who misrepresents or manipulates the client’s comments. Similarly, a defendant almost always needs an attorney to catch legal issues and file motions, and cannot exercise his or her rights otherwise.
This does not mean supporting a client’s objectives while leaving him or her blind to likely consequences of, for example, going to trial. The client’s attorney is perhaps the only person who will advise the client of certain potential outcomes. Even so, likely consequences should be described without having an objective outside of the client’s chosen objective. Some people who have been defendants lose trust in the system when their attorneys seem to have the goal of getting a guilty plea, probably because the defendants cannot tell what advice is legitimate and what is blurred by the attorney’s supposed ulterior motive. Additionally, harmful results are bound to happen to innocent people when a defense attorney joins the prosecutor in assuming guilt at an early stage. While the constitutional presumption of innocence may be limited in some ways, such as for deciding custody status pending trial, for showing innocence to have a decent possibility one’s own attorney should try to assume their client is innocent until the client explains otherwise. To correct previous bad impressions, I sometimes have a period of convincing clients that I am preparing for trial for them, and then trust to accept a beneficial offer comes.
Judges and Prosecutors
I have observed that clients appreciate having their day in court, and they appreciate when professionalism is shown to them. They also seem to appreciate words of compassion or good humor that are made directly to them. Something that frustrates many defendants is feeling misjudged. Professionals may place excessive emphasis on particular facts, or minimize an excuse made by a defendant. Large generalizations are sometimes made, such as negative statements with “you always,” “you never,” or “you keep.” Other times it comes from taking the specifics of a hastily written police report to be true, or from an incorrect memory of a person’s past interactions with the law.
Of course, positions and decisions should be made upon particular facts of a case. When a case goes to trial, the judge and prosecutor learn a fuller story from reliable, cross-examined sources. In such cases, I agree that it is helpful to base decisions on the full story, and the full story may make the defendant look better or worse than a simple statement that the law violation occurred. On the other hand, when a defendant pleads guilty, I think a decision can simply be made with the facts pleaded to, and perhaps some additional explanation at sentencing from the defendant who chose to plead guilty.
I heartily defend the exercise of the right to a trial and don’t think that it is beneficial to the system or individuals to systematically give better sentences to those who plead guilty over those found guilty at trial, but I think taking the defendant’s version of events when he or she pleads guilty is a natural benefit arising out of a defendant waiving trial and pleading guilty. See Alabama v. Smith, 490 US 794 (1989) (noting that “the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial”); Stedtfeld v. State, 755 P. 2d 1311 (Idaho Court of Appeals 1988) (stating that “[a]lthough a refusal to admit guilt usually should not be given much weight, a sentencing judge need not wholly ignore the issue when weighing the defendant's rehabilitation potential”).
When a police report is used during sentencing after a plea, I believe its weight should generally be small. With felony and juvenile cases, there is usually a clear chance for each side to present or dispute a certain version of events with the presentence investigation process. And with misdemeanor cases, hopefully the defense attorney knows if a judge sometimes relies on police reports and thinks to correct mistakes in the report if they exist. I suppose a judge could ignore evidence at sentencing that is not presented by one side, giving the other side a chance to object, but many prosecutors (or at least myself) may not explain (far less present testimony of) the facts at sentencing, so as a practical matter a judge may need to look at a police report to have any idea about the circumstances surrounding the crime. Writing this post is making me think that I should more often refer to facts so that, when the defense has its turn, the defense can correct any misunderstandings that might be lurking.
One judge I worked with would sometimes say, in a very sincere tone, “I’m very sorry” to defendants whom he ruled against. I’m sure he didn’t mean that he thought he was making an incorrect decision, but I appreciated his simple acknowledgment of the defendant’s pain. Perhaps justifying our positions to some extent is helpful and even necessary for a good record, but it can go too far, and a brief acknowledgement of our imperfect knowledge and the large number of factors involved can help reflect reality. An analysis of the economic and moral reasons for and against any one defendant’s sentence could probably fill volumes. I imagine a defendant may understand that time constraints prevent such analysis but would understandably be hurt if deciding his or her sentence was treated as a simple matter.
Acknowledging our imperfect knowledge will improve the official judgments that must be made and will also eliminate the casually spoken judgments that often do not need to be made. While efforts in this area may not lead to defendants rejoicing as they lose their liberty, perhaps more will recognize that they are respected as people, and only punished for properly proven actions.
Common Ground
While each criminal defendant is different, I think it will help if we view criminal defendants as not too different from ourselves. Sometimes we’re falsely accused. Other times we want to acknowledge and have repentant attitudes about our wrongs but have a hard time not also feeling indignant about our situations and want to give additional explanation. We feel scared and often frustrated in complex systems that we’re unfamiliar with. As lawyers, however, we have the benefit of increased familiarity with the system, and so we can use our extra mental clarity and calm to focus on extending extra care and mercy to those around us. Additional efforts in this area may create some common ground in our too-divided society, the common ground of defending a constitution made for all people. We can help defendants feel and be respected as some of the individuals our laws were made to protect.
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