Posted by Utah Criminal Lawyer Stephen Howard – June 11, 2016

From time to time, a criminal prosecution/defense case will catch the attention of the news media. Such cases often become the subject of much discussion in social media as well as in the more formal news media channels. When the sentence imposed in such a case does not match people’s expectations, public outcry can erupt with criticisms of the judge and complaints about the criminal justice system.

Sometimes there is public outcry over a sentence that is viewed as being too lenient. At other times, public concerns are raised over a sentence that may be too harsh.

Is our criminal justice system unduly harsh? Does the system coddle defendants? What is the right balance between harsh punishment and rehabilitative goals?

These are difficult and complex questions. But here are a few thoughts to consider.

Do we have all the facts?

The vast majority of criminal prosecutions come and go without ever receiving even the slightest sliver of the media spotlight – no newspaper coverage, no television cameras, no major internet news outlets. But for those few criminal cases that do get noticed by the media, the coverage can be intense.

But even with intense coverage of a criminal prosecution, the media often can only report a very small percentage of the facts, evidence, legal proceedings, and other information that are involved in the case.

Over my years as a criminal defense attorney, some of the most complex cases I have handled have included capital murder or white collar crimes. Some of these cases have involved hundreds of thousands of pages of police reports, investigative reports, discovery, evidence, and other documentation. Criminal investigations can include many hours upon hours of video surveillance, video or audio interviews with witnesses or suspects, police dashcam footage, police bodycam recordings, and more.

It is simply impossible for news media sources to include all of the facts of a criminal case when coverage is restricted to a 45-second television news story or even in a front-page newspaper story. At best, news outlets can only select a few of the facts that appear to be most important to the story. At worst, some media outlets will pick and choose the most provocative or incendiary details, presenting a version of events calculated to boost ratings or readership more than it is intended to present an accurate and complete account of the alleged crime.

Are the reported facts accurate?

A good criminal attorney handling a complex defense case can easily spend hundreds of hours reviewing and analyzing the investigative reports, discovery, and other materials involved in the case. Many news reporters are fully dedicated to presenting an accurate picture of the facts and processes involved in a criminal defense case. But the reality is that it is almost impossible for any reporter to devote the same time and energy to covering the criminal case for the news that the defense attorney will put into preparing the case for trial.

It is unlikely that any reporter will have a complete understanding of the facts, circumstances, and legal proceedings involved in the criminal case that either the criminal defense lawyer or prosecuting attorney will have. As a result, even the best-intentioned reporter will often make mistakes in presenting a news report to the public.

It is rarely in my clients’ best interests to have media attention given to their criminal defense cases. Thus, I have never intentionally sought media coverage for criminal cases I have defended. But over the years, I have occasionally had a case that has captured the media’s attention. Almost without exception, as I have reviewed the news stories that have been presented about cases I have been professionally involved with, there have been errors made. Sometimes the errors in the news stories involve a relatively minor detail that probably only the attorneys involved in the case would ever notice. But in other instances, the errors have been significant.

My experience with the media as a criminal defense attorney has led me to question the accuracy of media coverage of other cases. If the media is going to get the facts wrong on my cases, can I ever be sure that they are fully and accurately reporting the facts in other cases? Even assuming that all reporters have only the best of intentions, the reality is that errors are still sometimes made.

What is the right balance between punishment and rehabilitation?

When we express public outrage over a sentence seen as too lenient (or sometimes seen as too harsh), we should first consider whether we have the full facts relating to the case. Assuming that we do have a complete and accurate understanding of the case, the more difficult problem then becomes finding the right balance between punishment and rehabilitation.

Punishments imposed by our criminal justice system are based on multiple rationales. These include retribution, incapacitation, deterrence, and rehabilitation.

Retribution is in many ways just a more polite word for revenge. “You did something to hurt me (or to society), so we are going to do something to hurt you.” It may be one of the less-noble reasons for imposing a punishment. But it is a reason recognized as legitimate by our criminal justice system.

Incapacitation generally means that by putting someone in jail or prison, they are no longer able to commit crimes against the general public. Of course, many crimes are still committed within the walls of our jails and prisons. But an individual defendant who is locked up in prison generally loses the capacity to commit crimes against the general public. Society can be protected when the person is no longer able to commit crimes.

Deterrence refers to the idea that by imposing punishments against any one individual who has committed a crime, other individuals in society will be deterred from committing similar crimes. The theory is that a person who sees someone else punished severely for committing a crime will not want to receive a similar punishment, and will therefore choose not to commit that crime.

Rehabilitation is viewed by many as the most noble of the goals of our criminal justice system. The purpose of rehabilitative efforts is to help the offender make the changes that are necessary in order to become a better person and a more productive member of the community. For example, a person who has committed drug-related crimes may be rehabilitated by helping them through a drug treatment program rather than just locking them up in jail. A person convicted of a domestic violence crime may be helped in the rehabilitation process by taking a series of anger management classes. In theory at least, if the underlying issues that led to the criminal behavior can be fully addressed, society is protected and the offender becomes a better person.

Do we incarcerate too many people and for too long?

According to a variety of reports and studies, the United States has a significantly higher incarceration rate than any other country. Even when comparisons are made only to other countries that are similarly situated in terms of economic development and the structure of their criminal justice system, the United States still comes out at the top (by a significant margin) of the list for incarceration rates.

But are we safer as a society as a result of locking so many people in our jails and prisons? An review of the data relating to crime rates, incarceration rates, and the financial and economic costs of our criminal justice system suggests that locking people up may not always be the most efficient way of protecting society.

Certainly, there are some people who have committed acts so heinous that they demonstrate that they cannot freely participate in society. But the vast majority of people who have committed crimes will, at some point, be released back into society.

How long should an individual be incarcerated? Are there alternatives to incarceration that will better protect society and do more to promote the rehabilitation of the offender? How does probation affect the goals of the criminal justice system?

Some cases involve questions of racial bias or economic disadvantage. Is a person given a harsher sentence because he or she is a member of a racial minority or comes from an economically disadvantaged background? Is a defendant given a lighter sentence because he or she is white and comes from a wealthy family? Should white, wealthy individuals be punished more harshly to match the punishments imposed against a member of a racial minority or economically disadvantaged individual? Or can lighter and more effective sentences be imposed across the board?

These are difficult questions. And while there is no easy answer to the problem with crime, we should be careful about engaging in a knee-jerk reaction to every criminal case that crosses the headlines. Simply locking everyone up who has ever committed a crime will not turn our society into a utopia.