As a criminal defense attorney, I am often charged with the arduous task of minimizing the punishment that my client will get for his transgressions against society. All too often, there is no question of whether my client has done the thing he is accused of doing. Many times, the only question to be answered is what the proper punishment is for the wrongdoer.
Determining the proper punishment for a person guilty of a crime is not always simple. It can often be a question with many answers. Among the parties, the obvious explanation for the difference in opinion is often determined by which side of the dispute a person finds themselves. Victims usually want more punishment, and the wrongdoer and their friends and family will usually lobby for a less severe punishment. In those situations, the split is decided by which team the person asked is rooting for rather than what the proper justice is in a more cosmic sense.
Once you get outside of the circle of those personally touched by the commission of a crime, an objective decision of what the proper punishment is for someone who commits a crime can become much more complicated. How much weight should be given to the actual crime, and how much weight should be given to the personal characteristics of the offender? Is punishment the primary goal, or is public safety? Is the visceral need for revenge upon a wrongdoer a proper thing to consider?
How much should economics and cost benefit analysis go into the decision of whether to incarcerate those convicted of committing a crime? If a person steals $2,000.00 in public benefits, should we as a society pay 20-30 times that per year to incarcerate that person? An objective analysis of proper punishment can be quite perplexing.
Experience has shown me that the decisions that are made by a jury are often based on things outside of those leading to an objective analysis and objective decision. The level at which the jury members relate to either the victim or the defendant can have almost as much of an effect on the outcome of the case as the facts.
The jury will often find for the side to which they relate. Even when a jury finds someone guilty of a crime against another, if the jury does not like the victim or does not relate to them, you will often see a sentence that mirrors those feelings. The same goes for a defendant. The more a jury relates to a defendant, the greater chance that mercy will be shown in sentencing.
I submit that as human beings we are less likely to give mercy to those we deem as strangers or different from ourselves. Whether it is a function of fear of the unknown or simply prejudice and bias of those that are not like ourselves or come from a different place, strangers to a community are at a disadvantage when being judged by locals. This is not an indictment of any person or place, but simply an acknowledgment of our frailty and imperfection as human beings.
Sometimes it is good to recognize the limitations of being human. That is true for everyone, especially those of us way up in the CHEAP SEATS!
Bill James is a co-founder of the James Law Firm with offices in Little Rock, Conway and Fayetteville, Arkansas. His primary area of practice is criminal defense. He can be contacted at Bill@JamesFirm.com