The Holidays And Dehumanizing People

The criminal justice system is dehumanizing. This is so obvious it’s almost trite. But for people being prosecuted, it’s also acutely real.

Years ago, I was lucky to work with a very very good criminal defense lawyer. Over the years we worked together, most days I would find myself in his office talking about cases or judges or other lawyers as the work day wound down.

One day, around this time of year, I found him signing holiday cards. He had pulled the names and addresses for all his clients who were in prison, and was sending each of them a card. For many he wrote thoughtful, personal notes, remembering families or things going on in their lives beyond their cases. Even though he’s Jewish, knowing his clients were mainly Christian — at least nominally — he signed the cards with an enthusiastic “Merry Christmas.”

I found this gesture incredibly moving. I still do.

Maybe his clients didn’t really want to hear from their lawyer after the case was done. Maybe it would take so long for the card to get through mail screening that it wouldn’t reach them in time for the holidays. He did it anyway.

This time of year is busy. There are parties to go to and gifts to buy and associate bonus announcements to watch. Yet every year this guy took time to think about each person who he had represented and who was in prison and reach out to them.

As a result, though I’m not perfect about sending a card to all of my former clients who are now in prison, I still send a card to many of them.

(And, yes, I have former clients in prison. That’s where the “criminal defense” part of “white-collar criminal defense” comes in. If you’ve never had a client go to prison and you think of yourself as a white-collar criminal defense lawyer it’s because the white-collar work you’re doing either involves (a) reviewing documents in a windowless basement for an FCPA investigation or (b) a tremendous amount of luck. (And the Department of Justice has outlawed that kind of luck.) You may be doing white-collar defense work, but it isn’t white-collar criminal defense.)

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The criminal justice system is dehumanizing. This is so obvious it’s almost trite. But for people being prosecuted, it’s also acutely real.

In court, AUSAs barely use the name of a person being prosecuted — the person is almost always referred to as “the defendant.” It isn’t always clear if this is an advocacy point — the AUSA wants to keep reinforcing that the accused is accused — or if the AUSAs are simply uninterested in actually learning and remembering the name of the person they’re trying to put in prison. Most of the time I hope it’s the first option. Sometimes I fear it’s the second.

Many judges, especially when imposing sentence, don’t use a person’s name — they just say “the defendant” over and over. This has got to be easier; courts have busy dockets and it saves time to not remember every person’s name who comes before the court. And, to some extent, it’s a good thing. To listen to a judge describe every bad thing he or she thinks you’ve done is easier if the judge isn’t referring to you by name.

Aside from that one bright spot, it’s hard to describe the effect on a person hearing themselves referred to as “the defendant” instead of by name. What matters now is that they have been indicted, convicted, or sentenced; not their name.

Names matter.

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If the process of going to prison is one of losing one’s freedom and basic humanity — as surely it is — then the way federal courts start to strip a person of her name, slowly but surely, is a baby step toward that.

(As a result of this I compulsively avoid the word “defendant.” This leads to some very tortured language in appellate briefs when describing the facts of other cases.)

What I find so touching about my friend sending a card to every one of his clients is that he was reaffirming the basic humanity and dignity of each of his clients.

So much of what I write about here boils down to a call for a criminal justice system that treats people more fairly, or more compassionately, or more flexibly. It is, in short, a call to treat them like people.

To be sure, there are no shortage of institutions that fail to treat people like people. Law schools, law firms, and sometimes the pages of Above the Law come to mind pretty easily.

But, this holiday season, we can be reminded that we can, and should, do better.

Or not. Some lawyer somewhere is doing something stupid.


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.