How Much Punishment Is Enough?

 

The topic of punishment came up among my colleagues the other day. Ironically, it was initially about what had happened to the prosecutors who were fired after the recent change of administration.  Elections have consequences, and I have now seen seven changes of administration in the District Attorney’s office here.   Each has caused some disruption as some people were encouraged not to stay.  None in recent memory have had quite so many folks who were told they would not be back.

 

I will be candid that I thought this overhaul at the top was long overdue. I will also be candid that were some folks that were kept whom I would have fired, and that there were some who were fired whom I would have kept. I did not run for that office, so I figure that is not my call.  What has been more within my sphere is that several of these former prosecutors have now become defense attorneys, and have reached out for help and assistance in starting on this side of things. I have given that help, and advocated for some to become members of the local criminal defense bar.  This has met with some resistance by my brethren, and my response to them, and to you, the readers out there who may one day assess punishment in a jury case on the criminal docket, is: “How much punishment is enough?”  When does one stop kicking the person who is down?

 

I have been fired. It is painful and humiliating.  It is more so when you had a position of public trust, and your name is placed in the local paper as among those who were let go.  There is no good story one can give at that point to family and friends.  You were determined to be unwanted. That stings. Period.

 

I have also had days when I worried about the mortgage, and the prospect of losing my house.  There is nothing that makes that better, except work and money in the bank again.  I started in this hunter-gatherer business of defense work, so I at least have had a few decades to get used to the stress.  I cannot imagine what people with mortgages and kids do when they are let go from a good upper-middle class job. What does one tell a child when the tuition bill is due and one cannot pay it?

 

I have also done other things in my life, from laborer to military service to investigations.  If someone were to take my law license tomorrow, I would make do, and get by.  I have had the unique privilege of defending many people who were, well, frankly…damaged.  This unfortunately means they have sometimes filed complaints with the Bar and tried to do just that.   The Bar decided these complaints were without merit, but if I were a prosecutor and had such a complaint filed by a defense attorney, it would threaten the only way to make a living I had ever known, whether it was justified or not.

 

Even if the complaint is justified, that is a frightening place in which to find oneself.

 

Yet I suppose the same point may be made of most of our clients as defense lawyers.  If one has been publicly arrested and charged with a crime, from a DWI to a possession of drug cases to an assault, one has been most likely strip-searched, placed in county holding, taken from home and hearth, and if one has been in jail for more than few weeks [the average time between court settings here] one has lost a job and missed the rent.  So now in addition to having to produce bail that one likely does not have, one is facing homelessness for one’s family.  This is all before one hires a lawyer.

 

If you, the reader, have ever spent a day wondering if you were in trouble at work or at home, then imagine spending months awaiting a decision by a young prosecutor who has likely never known you or your life as to whether you would be facing prison, jail, unemployment, disgrace, humiliation, fines, money costs you can ill afford, and the ongoing stigma against your very ability to earn a living?  Over a hundred Texas licensing agencies and boards factor in criminal history in determining whether or not to “grant” you the privilege of making your daily bread, from commercial truck driving to nursing to barbers.  Take a gander at the occupations code if you do not believe me.

 

Likewise, for the reader, think of how painful it is to be away from those you love, even for a holiday.  For parents, think of how one misses children when they are away at school or at college, or move out of state.  For children, think of how one would like to see a favorite uncle or aunt again, or a grandparent, or a service or college friend. Now imagine having that choice to do so ripped from you, often for years at a time.  That is the consequence of prison, of jail. There are no furloughs or conjugal visits in Texas’ mass incarceration scheme, at least not in reality.

 

So, in our beloved system here, in our citadel of justice, we punish people for years for trying to drown their sorrows in drugs, or for a momentary lapse in judgment.  That punishment includes loss of liberty, when most of us hate to miss our family for even one day or one week.  It includes an almost permanent ban on fruitful employment due to the incredibly byzantine series of regulations that permanently punish past offenses.  It means permanent exile to the underclass for the sentenced and their families, because the children of prisoners face eviction, homelessness, and lack of education at a rate far higher than normal. I will visit that topic again, but for now simply know that is the truth.

 

It may come as a surprise that even those of my colleagues who see so much misery handed down without a thought by arrogant judges and uncaring juries were willing to pile on some of their former colleagues. Do not get me wrong; some of the prosecutors who were fired have abused their power.  I do not begrudge any boss the ability to shape their company or their office.  I do not wish to reward bad behavior.

 

I just have to wonder some days, whether dealing with former prosecutors or current clients, or future juries….how much punishment is enough?

About P. F. McCann

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association. His office can be found online at writlawyer.net.

Comments

  1. Great article Mr.Cann. My son has found himself in trouble with the law, and everything you state in your article rings so true. We are lucky enough to to have Mark Bennett working on our sons case. As a family that has never had any contact with law enforcement it’s been a real eye opener .

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