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Thoughts on the Concept of Guilt

Updated: Mar 4, 2020

I attended a book talk this past Friday, by renowned criminal defense attorney Abbe Smith, who is also a Professor of Law at Georgetown University and director of Georgetown’s Criminal Defense & Prisoner Advocacy Clinic. Her book, “Guilty People,” was published last month by Rutgers University Press.

I confess the title put me off a bit, because I worry - not just about the public, who hear "guilty" and think "animal" - but also about the many jaded criminal defense attorneys who are still practicing but have stopped caring, and as a consequence, have stopped seeing

the nuances that exist in every criminal case for every criminal accused, no matter where they fall on the scale of “guilt.”

We throw that word around as if we know what it means. We say the guilty must be punished without understanding how wide

a net is cast by our government, on whom our government focuses, and how intensely punitive the punishment is. Too many lawyers have given up trying cases because they are afraid of fighting and losing. Many people who are “guilty” are ordinary persons like you and me.

For example, robbery is forcible stealing. The elements of robbery are (1) intentionally (2) taking something that belongs to another without the owner’s permission (3) by force. The classic script in our head for robbery is a masked man with a gun, saying, “Your money or your life.” Yet I have represented a 16 year old boy charged with robbery because he was engaged in a fist fight with a classmate in the schoolyard, and during the fight he pulled the other boy’s jacket off of him, ran away and threw it in the street as he ran.

Rape means (1) intentional (2) forcible (3) sex. Classic script – mature male predator tearing the clothes off a screaming woman and forcibly penetrating her. Yet I have represented a 15 year old boy charged with Rape in the first degree, because he and a 15 year old girl had voluntary sex using a condom in the girl’s bathroom during basketball practice. It was “forcible” because part of the definition of sexual force in New York is “non-consensual.” A 15 year old girl is considered incapable of consent.

Both children were “guilty” if you looked at it from a strict constructionist point of view. But – really? Does the boy who ripped off the other boy’s jacket in the heat of the moment and then threw it in the street deserve to go to jail for any period of time? Does the boy who had factually consensual sex in the girl’s bathroom with a condom deserve a substantial prison sentence and mandatory registration as a sex offender for life?

I was happy to listen to Abbe Smith read parts of her book and later answer questions, because she displayed the same understanding of the nuances of crimes and people accused of crimes that I have. It is a pleasure to hear someone speak truthfully about the individuals who get caught in the system, mostly good people who we come to like and sometimes love, yet with terrible judgment or in terrible circumstances.

In our lives, we are all guilty of something. As Hamlet said, “Use every man after his desert, and who should 'scape whipping?” In ancient Palestine, death was the penalty for prostitution. Jesus dared each executioner to cast the first stone only if they were without sin. They all went home without throwing a stone. As great writers like Shakespeare and great teachers like Jesus do, we should look at nuance and context before we shoot that loaded word, guilt, at any living soul.

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