Mark Bennett’s post at Defending People, the best criminal law blawg around, on prosecutors concern for children, but only when it suits their purpose, struck a cord as I prepare for a federal sentence.  Mark writes:

Prosecutors seem so proud of themselves when they argue, “ Don’t show me photos of the defendant’s kids. He had those kids when he committed the crime and he didn’t think about them then.” The particular quote is from Jane Starnes, a former Harris County prosecutor (and Bellaire neighbor of ours) who now prosecutes in John Bradley’s office and apparently got some award from MADD recently. But they all say it, and every one of them acts like she thought it up herself.

Rephrased, the argument is this: the defendant didn’t think about his kids when he committed the offense, so I shouldn’t have to think about them now.

This is the pat response of all prosecutors, everywhere. Ask any criminal defense lawyer and they’ll tell you that they have received this reaction, no matter what permutation of words, a thousand times.  It’s one of the first things a young prosecutor learns when being taught to relinquish his humanity.  Unfortunately, many judges share this simplistic mantra as well.  Some judges don’t find it sufficient to ignore the existence of children, but feel compelled to admonish the defendant for the harm his criminal conduct has caused them.  Of course, there’s nothing like kicking a man when he’s down.

But truth be told, the pat response isn’t without some degree of merit, which is why it has such longstanding, albeit superficial, appeal.  Like the religious conversions brought about by the slamming of a cell door, it smacks of convenience.  The epiphany of concern for one’s children far too often comes after the deed, and the facile use of an infant’s photograph flies in the face of the selfishness demonstrated by a defendant before the cops slapped the cuffs on.

As letters of support from friends and family of my client roll in, I see that each talks about what a wonderful family man he is, and how deeply he loves his children.  They speak to what wonderful children they are, and how much they need their father.  They note that the children will suffer his sentence with him, and that they, the children, have done no wrong to be punished this way.

In a federal sentencing, the guidelines had long precluded consideration of the children as a basis to depart from the sentencing grid.  Now that Booker, Gall and Kimbrough have made clear that these guidelines are merely advisory, and now that the summary Spears reversal tells us that judges can categorically reject the guidelines refusal to acknowledge that consideration of children in determining the proper sentence, judges have it within their power to accommodate the impact of their sentence on a defendant’s family.

But this doesn’t mean that holding up some photographs of kids is going to persuade a judge to impose a different sentence then she would otherwise.  Nor does it mean that she should.  It seems appropriate that we start from the premise that a defendant, as a father or mother of a child, should have considered the impact of their criminal conduct on their family, and thus they should not be allowed to “hide behind their children” to avoid sentence.  From there, it’s up to the defense to show that the individual circumstances of any particular human being, any particular family, take it outside the norm and provide compelling reasons to reduce the sentence.

An interesting alternative way of thinking about this might be to consider whether we believe that defendants without children should be categorically sentenced to higher sentences than defendants with children.  The obvious answer is that this would be wrong, as not having children certainly is not a rationale for imposing a more severe sentence.  For this reason, we need to be careful about asserting the opposite, that merely having children is cause to impose a reduced sentence, as it would take us to the exact same place.

I’ve known defendants whose connection to their children was tenuous at best.  Indeed, some barely knew their names.  I’ve known defendants who were unbelievably wonderful, loving parents, integral in the lives of their children and, their criminal conduct notwithstanding, truly critical to their children’s welfare.  While I will argue sentence on behalf of every client with zeal and passion, the truth is that my rhetoric is no substitute for the love and need a child has for a parent.  When it’s real and deep, it shows.  It shows because it permeates the family structure, and it is so clear and overwhelming that it cannot be denied.

Whenever a parent stands before a court ready for sentence, a child will suffer.  The hardened attitude toward the child reflected in the knee-jerk prosecutorial reaction is always wrong.  These are innocent children, and they have done nothing to suffer the consequence of their parent’s conduct.  Yet that doesn’t mean that a parent is absolved of responsibility for his own conduct because his children will pay the price with him.  It does mean that it should always be taken into consideration in fashioning the right sentence, even though such consideration may not necessarily result in much of a reduction if any at all.

The removal of family impact from consideration under the sentencing guidelines is categorically wrong.