Woe Is Them Too

While reading a post about a day in the life of a juvenile defender, I realized with a shock that I was committing heresy.

This is the first time the teen has been in trouble and he has unpaid restitution fees.

“It can be really hard for these poorer families to pay,” explains Pinkney.

Pinkney glances over his list of charges and intake report. Apparently, the teen was at a demonstration in downtown Oakland, when he and a group of other kids broke off from the group and started vandalizing cars.

It’s not that I didn’t appreciate what was being said, that poor children and their families lack the resources to pay restitution, or worse still, the money come from necessities like food.  I did. But my mind went to the vandalized cars. I thought to myself, what about the guy whose car it was?

As much as victim-driven jurisprudence is grossly misguided and can produce terrible outcomes, it doesn’t mean that we, the defenders of the faith, should dehumanize them and their suffering any more than allow defendants to become objects to be thrown away. The flip side of loving defendants too much is not caring about the victims of crime enough.

In a lengthy article, the New York Times described how the victims of Bernie Madoff were doing five years out.  They make an interesting juxtaposition, as they weren’t part of the struggling masses yearning to feed their families, but the comfortable, well-to-do, set, pondering whether to have dinner at the club or perhaps a trending nouvelle cuisine restaurant.  They’re harder to feel badly about than most. They test us.

These eligible victims can expect to collect at least 54 cents for every dollar they gave Mr. Madoff. But they represent only 15 percent of 16,000 Madoff-related claims. (Each claim could represent hundreds or even thousands of investors.)

Most of the investors — including those who lost cash through an intermediary — will receive much less, if anything, and some may even be required to pay money to the trustee.

They worked. They succeeded. They saved and they invested. And they got burned. Some might suggest it was their own fault, trusting their money to a scheme too good to be true, but that’s nonsense. It was good, but not too good. Madoff was a pillar of the financial community. There was no reason for concern, at least not until afterward, and they can’t be blamed for making what appeared to be a sound and solid choice.

The first anecdote in the Times article involves Burt and Joanne Meerow, who sold their business in 2004 to retire.

Today, the Meerows — he is 75, she is 66 — have settled into a new life in West Dover, Vt.

“When your life gets altered overnight, you realize you don’t have to keep doing everything you’ve been doing,” Mr. Meerow said. “You don’t need to belong to a country club, or drive an expensive car or buy expensive jewelry. You certainly don’t have to own three separate dwelling places. It was all pretty obvious.”

Still, the Meerows say they feel lucky. Their losses did not affect the health or safety of loved ones, and they are not facing a clawback claim.

Given all the difficulties that are endured by so many, can you muster any empathy toward the Meerows?  So they no longer belong to a country club, drive an expensive car or buy expensive jewelry? What about the people who can’t eat, who lose loved ones, who watch their children suffer?

In the minds of many, we play a trade-off game, doling out our empathy as if it’s a zero-sum game, where it all goes to the person who suffers the most and there is none left for people whose suffering just, well, isn’t what half the world would consider suffering at all.

This is unfair and wrong, and reflects how the criminal defense mindset can lead us to be as harsh toward people as we decry when they do the same toward our clients.  If we were forced into empathetic triage, it might be understandable, but we are not, and it is not. The Meerows are every bit as entitled to enjoy the fruits of a lifetime of hard work and success as the vandalized car owner is entitled to find his car the next morning in the same order as he left it, so he can go to work, earn a living and feed his children again that night.

Recently, much has been made here about the bad laws being promoted to criminalize revenge porn. Because of the disingenuous position taken by its prime advocate, Mary Anne Franks, the discussion appears to devalue the harm suffered by those who were victims.  Yet, at no time have I forgotten the wrong done them and harm they’ve endured, and while Franks’ jihad forced the discussion to devolve, it was not because the victims’ harm was insignificant or inconsequential.

As with the juvenile who vandalized the car, the ramifications of crime can be hard, if not impossible, for many.  And since the job of criminal defense lawyer is to represent the defendants, we expend all our energy on helping one side to survive.  But we do so knowing that there is a prosecutor, a judge, and that they are there to serve the other interests.  We can focus on the defendant with a clear conscience, as that is our sole duty.

But as human beings and lawyers, we can’t forget that there are often victims of our clients’ conduct. They may not be “our problem” to fix, but they are no less real and deserving of our empathy than our clients are. We speak of cops, prosecutors and judges being heartless for their inability or refusal to recognize our clients are people. We have no right to be just as bad.

4 comments on “Woe Is Them Too

  1. AP

    One of the occupational hazards of being a defence lawyer is the misguided belief by some that because we represent people accused of crime we must therefore hate all crime laws, hate all the police and of course have no time for victims of crime. A couple of friends of mine who are firmly on the far left of the political spectrum and Occupy Wall Streeters to their core once said that we as a capitalist society get too bent out of shape when people vandalize property (cars, buildings etc.) in the name of social justice. “It’s just a building” they’d argue. When I asked them if somebody vandalized their home in the name of some cause how they would feel I was met with “that’s different we’re not rich”.

    1. SHG Post author

      That’s why the non-lawyers (and occasional lawyer) who comes here to “tell us” how everybody is evil don’t receive the appreciation they think they’re due. They’re wrong. They’re full of passion, zeal and anger which blinds them to the fallacy of their position and often their own hypocrisy.

  2. Rick Horowitz

    This is something that I have thankfully not struggled with much. People sometimes tell me that I “would think differently” about “representing criminals” — I always remind them I typically represent “people accused of crime(s)” — if I were on the receiving end of criminal behavior. As if I’ve never been there.

    My job does not require me to ignore the human cost of crime, because my job does not make me a cheerleader for the commission of criminal acts.

    I make the government prove its case, if it can. If it cannot, then whoever suffers, and those who support those who suffer, should realize that maybe my client just isn’t the person who caused that pain.

    Especially given how the system is stacked against acquittal, or dismissal, even where there is good reason to believe a person has been wrongly accused.

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