WE Live Sheltered Lives

 Posted on April 13, 2008 in Uncategorized

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.