Criminally Yours: Seeking Kinder And Gentler Prosecutors — Is It Even Possible?

I often wonder what drives people to become prosecutors as opposed to defense counsel.

We’ve all chosen criminal law as our career path instead of say, trusts and estates.  We all love the action of being in court, the arc and drama of a trial, and the oral advocacy skills needed to persuade jurors and judges.  But I’m coming to believe there is a real difference between how people who gravitate to prosecution, as opposed to defense, see life.

Here are some huge generalizations.

A lot of people I know in criminal defense come from a place where they’ve had bad experiences with police. Nothing serious, mind you, that would prevent them from becoming an attorney, but maybe the odd shoplift as a kid or some other low-level misdemeanor that ultimately got wiped from their record.

Defense attorneys are skeptical of authority.  They like to challenge police, government officials, and the standard way of doing things. They like sticking up for the underdog — the guy who never got a break, who’s tough to talk to, often not that smart, and desperate for help.  They look for ways to challenge the law, to find the exceptions to the rule. They rely on compassion and optimism — no matter how bad somebody screwed up, he deserves another chance.

Prosecutors, on the hand, are bureaucrats.  They work for large bureaucracies.  Most of the line attorneys are cogs in a wheel buffeted by political forces (the need to get re-elected).  They are adverse to leniency and must often enforce tough legislation that they’ve had no hand in writing.  They have little discretion — most have to refer to higher powers (“I need to ask a supervisor”) to have the authority to do anything outside of what’s standard practice, i.e., treat every defendant the same. (If you did this, then you get that.)

They tend to believe incarceration is an appropriate remedy, no matter how long, no matter how unsuited it is to assisting people in getting ahead and re-entering society once their time has been served.  Whatever the legislature says, goes.  Indict first, ask questions later.

They have a lot of power and while some wield it wisely, many don’t.

They often tend to be very different from the people they prosecute.  Most are Caucasian from upper-middle-class backgrounds who have never suffered drug addiction, a night in a homeless shelter, or less than a good education.  Most don’t come from broken homes, or homes where their parents know the inside of a jail better than the inside of a college.  Most don’t suffer mental illness and find it difficult to relate to people who do with compassion.

Many have higher ambitions — to move on to some role in politics or a better paid position in a prestigious law firm.  Most can easily condemn, but only rarely commiserate.

I’m not the kind of defense attorney who thinks all crimes should be forgiven and that no one should be punished.  But let’s make sure the time fits the crime, and for that to happen, we need to have open-minded prosecutors who are wise to the ways of the world.

They choose what crimes to charge, whether to indict, and what plea offers should be made.

I wrote an article last week about the hopeful trends in criminal defense as the nation seems to be awakening to the fact that jail is not a panacea; that people who get arrested have problems that must be addressed in a way that will assist them and, at the same time, assist society, by helping them not recidivate; that a whole generation of black and Hispanic men continue to be incarcerated and that the way to stop this from happening to younger generations is to be willing to approach the problem globally and not just with longer sentences.

But I had a case this week that made me feel less than optimistic. My client, Dwayne, a 21-year-old black man, crawled though his uncle’s window (an uncle with whom he’d grown up and who had his own criminal record) and, with another cousin, stole his Playstations.  At the time Dwayne did this, he was stoned.

In his young life, Dwayne had racked up a couple crimes — a violation and a misdemeanor.  As a young boy in 6th grade, he brought a BB gun to school and retaliated against a kid who had been bullying him. The boy lost his eye.

Yes, Dwayne has had some run-ins with the law, but climbing into his uncle’s apartment to steal a Playstation is not the worst crime in the world.  The ADA indicted him for Burglary in the 2nd Degree, a C violent felony that carries with it a minimum sentence of 3 1/2 to 15 years incarceration.

The uncle doesn’t even want Dwayne to get this. Having been arrested himself, he understands what having a felony record can do to a young black man. Plus he loves the kid.

I sat at a meeting last week with the ADA, her supervisor, and Dwayne as he told his tragic story of losing his dad at age two, being shunted to his uncle’s house at age 11 because his mom had to go to a shelter, going to a sub-standard school in the Bronx, turning to liquor and marijuana on a daily basis, getting a diagnosis, at some point, of being bi-polar and potentially suffering from ADHD.

The prosecutors saw themselves as being very generous just to be considering the possibility that Dwayne could get a program instead of jail.   They made it clear at the meeting that they were not “promising anything” (they had to go to higher authorities).

They also added that even if they were open minded enough to offer a non-mandatory sentence and permit a program for Dwayne, that program would have to be “very rigorous.” They’d be watching him like a hawk and any screw-up, even smoking a blunt, would get Dwayne a much longer time in jail then if he’d just pleaded guilty to the minimum, 3 1/2 years.

The supervising ADA called Dwayne’s crime “horrid.” Horrid?  In some white suburban neighborhoods, breaking into your uncle’s house to steal a Playstation would result in a stern rebuke from the town sheriff and a night in the slammer, not an indictment for Burg 2.

What’s most frustrating is how little these prosecutors understood about the boy in front of them — the hurdles he’d overcome growing up as he did, how difficult it had been for him to lead as normal a life as he had.  If 21-year-old Dwayne can’t get a program on a crime of this nature, then who should qualify?

Provided with the right guidance, education, mental health treatment, and job training, Dwayne could go far.  Maybe prosecutors do not understand how devastating a felony record makes it for a young man to move on, find work, and cure the mistakes of his youth.

Ironically, instead of plugging into the modern sensibility that tougher jail sentences are neither necessary nor fair, the Manhattan District Attorney’s Office is going in the opposite direction. Ten years ago, before Cyrus Vance was voted into office, this case might never have been indicted in the first place.

I don’t know if this unforgiving attitude mirrors other prosecutor’s offices around the nation, or if this is just a pocket of resistance to what many acknowledge is a more enlightened way to look at crime and punishment.

Whatever the case, Dwayne is one of thousands of young, black men waiting to know if he’ll be given a second chance — a decision that lies only in the hands of the prosecutor because of mandatory sentencing.

Let’s hope they make the right one.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at [email protected] or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.