While the flip attitude toward justice raises some eyebrows, the game-like justification for why it happens to those “Big Time Losers” is what catches ones attention. 

General deterrence is a legitimate sentencing factor.  Courts have said so, and that makes it so.  Whether general deterrence actually serves to deter is a matter for sociologists to ponder, but for lawyers’ purposes, we take it as the court gives it. 

But general deterrence is not the only factor.  Court tell us that as well.  So the big winner of the reverse lottery does not become the poster boy for all criminals.  Each and every defendant stands before the court by him or herself, to be sentenced for what he or she did.  While the nature of punishment serves to fulfill the deterrence piece, we don’t dump on any single individual because we hate criminals and need a whipping boy to compensate for our general sense of inadequacy toward law enforcement.

The Texas prosecutor who came up with this smarmy analogy thought he was being cute.  This is the kind of answer one gives at a cocktail party to impress the opposite sex with one’s wit and brilliance.  But guys like this actually have a role that affects other peoples’ lives, which takes some of the fun out of it.  I hope he went home alone from that cocktail party.  As a deterrent from making foolish analogies.

By this theory, any time a prosecutor has the ability to nail some defendant good, he should seize that opportunity and make sure that the guy not only gets convicted of the worst possible crime, but receives a sentence so totally disproportionate to the offense that all the criminals who hear about it are left breathless.  Certainly, that will put a major dent in crime, as we all know that criminals put a great deal of thought into their commission of crime before hand, weighing the costs against the benefits, before deciding whether to move forward.  This well conceived analysis would certainly benefit by raising the back end price, thus shifting the equation away from the unlikelihood of getting caught by the cops to the severe consequences if, despite the favorable odds, one gets pinched.

Wait a sec.  I just remembered.  Cost/benefit analyses are only done by non-criminals and MBA students.  Criminals have a nasty habit of not thinking.  Some aren’t capable.  For others, it makes their head hurt.  One theme that runs through my representation of people charged with crimes over the past 25 years is the total absence of thought in making the decision to do wrong.  The answer to the perennial question, “what were you thinking?”  “I wasn’t.”

So that reduces the social utility of deterrence to a great way to keep the lapsed middle-manager from deciding to rob a bank when his bonus comes up short.  But it does little for the 99% of crime done by the thoughtless. 

Ultimately, we are left with a game played by prosecutors (some, not all), who take it out on the individual defendant that is so easily nailed that he is helpless.  The analogy is wrong; it isn’t a reverse lottery.  It’s shooting fish in a barrel.  Better yet, it’s the answer to why a dog licks himself (with gross thoughts of Sarah Silverman). 

Ironically, the prosecutor’s description of the lottery process is so far off base as to be laughable.  Where are all these criminals getting away with everything, running amok, scoffing at the prospect of getting caught, convicted and sentenced to prison?  Our prisons are bursting at the seams.  As Grits notes, it hasn’t done a thing to keep crime down in Texas, but it is great for the private Texas prison industry. 

The good news is that not all prosecutors think this way.  Most would have the good sense to keep their mouths shut if they did.  And some actually understand that they are dealing with people.