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?

An open letter to the new District Attorney

Dear Ms. Ogg,

You will be getting a great deal of advice in this month and the next. Some of it you will welcome. Some you will wish had not been offered. The following is a request, from someone who has labored in our local factory of injustice for over twenty years. Read it, ignore it, use it to line the bottom of the bird cage, do as you will with it, but please remember that this open letter is from someone who has never asked you for a favor nor said a damn thing against you. Take it as you wish.

1. It is time to leave behind the legacy of Johnny Holmes.
Johnny Holmes left his mark on the Harris County District Attorney’s office as an elected DA who ruled with an iron fist. That legacy was a ruthless, “win at all costs” mentality that has recently resulted in seeing a series of grants and recommendations of relief for prosecutorial misconduct, most of them against senior prosecutors who grew up under Holmes. Now, he may not have been a bigoted buffoon or a pill addict like the fellow he hand-picked to succeed him, but that fellow sure was, so what does that say about his judgment? It is time to sweep out the old notion that convictions at any cost are somehow justice, and get some fresh air in your office.

2. Neither the mentally ill nor addicts benefit from prison.
Your opponent, whatever you may feel about her, believed deeply in treatment courts and diverting the mentally ill and the addicted from prison. This reduces jail over-crowding and recidivism. It is a smart and practical use of scarce county resources to see to it that treatment for the users and the addled is a far more useful boon to society than locking them up and forcing them to take pleas in our current grain mill of a courthouse. Resources you pour into such programs and courts are resources that pay dividends to the taxpayer, to the accused, and to us all.

3. Your assistants will benefit from training far more than more needless, ill-chosen trials.
In every organization, from the armed forces to the police to the county, training is always the easiest thing to cut while being the worst thing to ever skimp on. Docket management is not your job; producing qualified, ethical prosecutors whose only desire is to make certain that the system works fairly is. Training includes making prosecutors familiar with mental illness and the latest in true forensics, not the “junk science” that has been used to convict the innocent so frequently lately. Training includes ethics training from points of view different from one’s own. Invite other groups, citizens, judges, and defense and civic groups in to your training. Make training participation and credits part of your evaluation of your hires. Please, make training a priority.

4. Invest in conviction integrity.
After many years of assuming that what police, forensic lab technicians, and prosecutors did was somehow above reproach, we now know differently. I knew you to be a fair and honest prosecutor, so I hope you will continue to staff and fund the division of conviction integrity in your office. Since their inception they have done yeoman’s work in helping review and correct wrongfully obtained convictions of our fellow citizens on everything from drugs to murder. Let them continue and help you and your office live up to the prosecutor’s obligation to seek justice, not convictions.

5. There are a relative handful of violent offenders who do damage far out of proportion to their numbers. Focus on them.
Many people make mistakes and cause us harm without meaning to injure. They regret their actions and would atone for them if they could. There are others who simply want to watch the world burn. Focusing the efforts of your office on those latte-r individuals in a coordinated, thoughtful way would do a great deal to restore all of our faith in the system in which we work. Expand the divisions for Special crimes and violent offenders. Please encourage your staff to actually work carefully with other agencies to target those who prey on the fringes of society, those who maim and hurt the homeless, the poor, the weak, and the old. When they are safe, so are we.

Ms. Ogg, you do not owe me a response. You do not owe me anything. I am simply someone who has seen enough abuses of power over the years to make any citizen weary of the game. Yet I continue to hope that someone will listen if I tell them the truth. Your old office lost its way over this past decade. That is the truth. You have a chance to truly make positive change in this place, that same place that some of us work within, and all of us depend upon.

Good luck.

Very respectfully, Pat McCann