Tonight I was talking to a fabulously cool attorney who went to law school at Loyola in the pre-Katrina years, and recently returned to practice in Nawlins. She was reflecting on how sad she finds it that kids who were in their early teens five years back during the Katrina disaster and subsequent rebuilding, kids who learned during their formative years that their government didn't care about them and whose mental and emotional well-being was all but neglected, should now, when they end up on the defendant side of a criminal prosecution, be treated as though none of this matters.
Before I confess that her words moved me, let me add a disclaimer. I do not by any means think that young adults, even teenagers, no matter how difficult their lives have been, should be excused and told it's just fine when they commit criminal offenses. I'll not disrespect individuals with difficult childhoods by patronizingly claiming they can't tell the difference between right and wrong, particularly in violent offenses such as domestic violence and rape (perhaps more sympathy is due smaller drug violations).
But surely there's a place for these considerations. Would not our criminal justice system benefit from considering the context in which individuals commit crimes? The legal system in general has been very slow to accept advances in psychology and mental health. Yet it seems self-evident that criminal justice especially would benefit greatly from considering truly rehabilitative instead of retributive justice.
Certainly, some exceptions are made for individuals with legitimate mental impairments. But once mental health professionals have referred defendants back to the criminal justice system (stating that the defendant can understand the charges and proceedings of the trial: an extremely low standard of mental health), it's entirely at the discretion of the judge (and to a much lesser extent the jury) to take the defendant's history into consideration. And even in the best scenario, judges have limited options to choose from, in terms of counseling and therapy available to convicts.
Perhaps this all comes down to what we imagine the criminal law should do. Is it retributive in nature? Deterrent? "Just"? I, for one, believe there is no justice in a system that can't consider context or craft appropriate, individualized responses to crime. This may be highly idealistic and thoroughly unworkable.
But hey, I'm a 1L. If there's a demographic that ought to be idealistic, I'm it!