Schadenfreude, Irony, and The Defense Function [Update: Photo Added]

 Posted on January 01, 2011 in Uncategorized

Prosecutors Lester Blizzard and Kayla Allen, however, asked Ellisor for life sentences to send a message to anyone who would drive while intoxicated.


Howard is an unsympathetic character. Because he is an unsympathetic character, it's easy to send him to prison for life. Blizzard and Allen were arguing for general deterrence: "send a message." But for the same reason that it would be easy to send him to prison for life-because he is an unsympathetic character whose experience is so far divorced from most of ours-sending him to prison for life is a particularly poor general deterrent. The message here is not, "if you drive while intoxicated the consequences will be severe," but rather, "if you commit aggravated sexual assault of a child, get convicted, fail to register as a sex offender, get convicted, and then drive while intoxicated and kill two people the consequences will be severe."

The judge listened to Blizzard and Allen and sentenced Jim Howard III, the defendant in that case, who had no prior DWI convictions, to concurrent life sentences for intoxicated manslaughter (second-degree felonies enhanced to first-degree felony punishment by prior sex-offense convictions). Howard will be eligible for parole in 2040, when he's 60 years old, if he lives that long in Texas prison.

When the judge sentenced Howard to life in prison, he was not punishing him only for his bad act-driving a car after drinking too much-but also for the unintended and random consequences of that bad act. The difference between DWI and intoxicated manslaughter is nothing more than lousy luck; Jim Howard didn't get life in prison because of his act, but because of the unforeseen consequence of that act, out of his control once he committed the act. His act would have been the same, and his culpability no less, if he had made it home safe.

Normal people (like normal dogs) have an innate sense of fairness: people should get what they deserve, and no worse. But normal people also seem to have an innate sense of retribution: people who do harm should be punished, regardless of their culpability. Retribution is what makes a child angry at the sofa on which he stubs his toe, and retribution is what makes the punishment for DWI with no injury different than punishment for intoxicated manslaughter.

I had a beer (beer-"proof that God loves us"-being a necessary component of philosophy) recently with a Real Live Professional Philosopher. I argued that determinism invalidates retributivism because retributive punishment for things beyond a person's control is unfair. Why, he asked, should the impulse for fairness trump the impulse for retribution? If seeing people get no worse than they deserve makes us feel good, and seeing people who have done harm punished makes us feel good, why should one feeling be superior to the other? I don't know the answer; it may lie in the fact that one of the reasons we have government is to restrain the private retributive impulse. But it is my sense that the natural personal retributive impulse is an unworthy motivator of governmental action. I'm not sure I can objectively justify it, but I think we are better than that.

Retribution would often justify harsher punishment than the other goals of punishment. So criminal-defense lawyers find themselves trying to keep people's (judges', jurors', prosecutors', complainants', the general public's) private retributive instincts from bringing our clients to greater harm in court. How, then, do we reconcile our own private retributive impulses with our mission of keeping the government from retributively harming our clients?Murray Newman does not understand.

Murray has a friend, a prosecutor, who recently got charged with DWI. Not everyone in the criminal defense bar responded with pious speeches about the presumption of innocence. This baffles Murray. It shouldn't: this apparent contradiction is at the heart of what it means to be a criminal-defense lawyer.

The presumption of innocence exists and applies to Murray's friend as much as to anyone: if he is punished for DWI when the government hasn't proven its case beyond a reasonable doubt, that will be offend our senses of fairness. Any criminal-defense lawyer, called upon to represent Murray's friend, would set aside personal feelings and fight like hell for him, or-if she finds that impossible-decline the case.

But there is irony here that cannot be ignored: not only did Murray's friend faithfully serve for years the system that now has him in its clutches, but he also has, more than once, argued for harsh punishment in alcohol-related cases to "send a message." When he has done so, he has hurt human beings. Did they deserve it? Murray and his ilk think they can tell; I'm not so sure, especially when the difference between a maximum of six months in jail and life in prison is-as in Howard's case-nothing more than dumb luck. I think that knowing what a person deserves would require a godlike wisdom that no prosecutor I have ever met has had.

Blizzard and Allen thought that Howard deserved life in prison. I think they might well have been wrong. Right or wrong, Blizzard and Allen harmed Howard, as prosecutors harm human beings every day. They think-how could you do the job and not think this?-that the people they are harming deserve the harm. And they may be right; the harm they do may be justified... but some of the risk that they are wrong falls on them. If they are wrong, and there is Justice, there will be consequences.

Murray claims that he never took pleasure in the harm he caused those he prosecuted, and I can't gainsay that. But there are more than enough prosecutors who seem to-who accept gold coins for life sentences, who go out to party after death sentences, or who otherwise add notches to their briefcase handles; who claim to have gone to law school "to put people in prison," or who lie to send innocent people to death row-that those of us who have never put anyone in prison can be forgiven for seeing that taking joy in the harm they cause is more normal than Murray thinks.

But that's beside the point, because the sense of fairness is one thing; the sense of retribution is another. Just as the presumption of innocence has nothing to do with retribution-the impulse to punish people for the harm they cause, regardless of desert-neither does the intention of retribution's object (remember that toe-stubbing sofa).

Retribution is one of many dangerous things-prejudice, lust, avarice, wrath, envy, and so forth-in the dark corners of our minds. If we-human beings-pretend those things don't exist in us, they will control us. More to the point, if we-criminal-defense lawyers-don't well understand those things in ourselves, we can't counteract them in judges, prosecutors, and jurors.

A criminal-defense lawyer might feel schadenfreude at a cop's or a prosecutor's unfortunate encounter with law enforcement; this is entirely natural. When we feel it, we should note it, think about its roots, and not be ashamed: criminal-defense lawyers are allowed to have feelings, emotions, and even prejudices. We're allowed to share our feelings among ourselves. Criminal-defense lawyers are even allowed to turn down cases because of our feelings. What criminal-defense lawyers must not do is give any defendant short shrift because of our feelings.

Murray's very first commenter, in what is to me the most perplexing Godwinization of 2010, calls me "Hitler"


Because anyone can spout platitudes about the presumption of innocence, but setting aside personal feelings to defend human beings in trouble is what criminal-defense lawyers do.

Some, like Murray's cowardly anonymous commenter, will never understand this (which is why some prosecutors never amount to anything as criminal-defense lawyers), but someday, I hope, Murray will.

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