What is worse....?

To be unjust or unmerciful?

This question was asked of the applicants to the Public Defender's Office this past spring. We received a wide range of answers. There was no right or wrong answer, at least in my opinion, but I was looking for some real thought in the answers. I've been thinking about this a lot, especially when I consider my role as a defense attorney in the criminal justice system. To be honest, I often struggle when pursuing acquitals procedurally or during trial when I feel that somebody has committed a crime that needs to be addressed by the justice system. As a person who drives on these streets, I worry about the dangers of DUI and feel it should be punished; as a defense lawyer, I am dedicated to the principle that all need a fair trial and that accused persons need advocacy on their behalf equal to the advocacy the state receives. In other words I force myself to separate my duties as a lawyer for the indigent from my personal feelings about a particular set of facts. This struggles defines the way I view the question.

It comes into play each time I make an argument at sentencing or negotiate a plea offer. Sometimes the argument is simply asking for what is just--essentially equal in relation to others charged with the same sort of offense, and sometimes asking for mercy--special consideration because an individual's circumstances even though the crime itself would generally call for a harsher result. Here is what my answer would be . . .

It was worse to be unmerciful. To be unjust, in my opinion, is to act abritrarily--to act without regard for actual guilt or innocence, with no justification in law or fact for the decision made. True, some people will receive a fair result and others an unfair result without rhyme or reason. To act unjustly, as I consider it, is to act without regard for equity. To act unmercifully, on the other hand, means that the decision maker actually knows of specific mitigating circumstances that justify special treatment but chooses to ignore them. In other words, the decision maker disregards her knowledge why one defendant, who committed the same crime as another, shouldn't simply be lumped in with the other offender. Often these mitigators are emotional distress or desperate circumstances that don't rise to the level of legal justifications, but which clearly explain why somebody acted illegally. Unmerciful behavior surpasses arbitrariness and enters the realm of indifference. Maybe a better synonym is "heartless," with every connotation that it carries. I would rather be known as unjust than heartless.

On a side note, I think I understand now why Prof. Osler and his colleagues have been fighting so hard against the sentencing guidelines as they were/are written. Booker was hugely significant--it put the person back into sentencing; it allowed a federal judge to be both just and merciful, though perhaps only to a certain extent.

What do you think? Is it worse to be unjust or unmerciful?

Colin is already 2 weeks old!

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