More than a decade ago, one of my dearest friends decided to take her two and a half year old son to Sea World in San Antonio, which is where my parents live. She also had her second-born son with her, who was only six or so months old. My friend and I went to high school together and so my parents know her very well and, since I was spending the weekend with my parents, she and the boys came over for dinner after Sea World.

While at my parents' home, the baby started crying - a lot. We were all trying different things to soothe him and nothing seemed to work. This is when my Dad, who did all the bread-winning and very little of the child-rearing in our family, suggested that what the baby needed to calm down was just a little bit of opium applied to his gums. This sent me and my friend into hysterical laughter - both the advice and the source of it seemed so preposterously funny.

I couldn't help remembering this story after reading a recent Wall Street Journal article about the increasingly effective use of cultural defenses. In short, the idea is that someone's culture can be used to defend them against allegations they have committed a crime:

In 2004, Yer Vang, a member of the Hmong ethnic group who emigrated to the U.S. from Laos, was charged with opium trafficking after police found more than 300 grams of the substance in his Rock Hill, S.C., home. His lawyer presented evidence that that amount of opium was less than an average Hmong tribesman from his country smokes in a year.

"It's their version of Advil. They've been using this for 1,000 years," says Mr. Vang's lawyer, Chris Wellborn, argued.It worked. "An all-white, predominantly Republican, South Carolina jury found him not guilty," Mr. Wellborn said.

My parents were both born and raised in India, and while they were growing up, opium was used regularly as a substance that soothed and killed pain; or, at least, this is what my Dad told us after we had calmed down from our laughing fit. And now that my husband and I have kids and I have clenched my teeth through many a 2-year old temper tantrum, I'm beginning to wonder if he might have been on to something.

Detractors of cultural defenses posit that immigrants shouldn't get a break just because they were raised in a different culture, with different norms. To do so, they suggest, would be unfair to other citizens raised in this culture who are expected to abide by the law, no exceptions.

I don't get that. Part of the job of a prosecutor, it seems, is to figure out if a person deserves a second chance; for example, probation versus jail time, or a dismissal versus a conviction that stays on a person's criminal record forever. And part of figuring that out is determining if they are dealing with a person who, while having done something criminal, is not really a criminal. Maybe they did something stupid because of their age. Or maybe they did something totally out of character because they were very intoxicated or under an enormous amount of stress. Maybe they have an undiagnosed mental health issue. Maybe they made on honest mistake. Or maybe they just didn't get it or get the seriousness of it--because of their cultural background.

Of course, prosecutors have to consider whether the alleged crime was violent, whether there was a victim, or whether others were put in danger because of the defendant's behavior. Our practice is full of clients who broke the law, but have no criminal records, did not hurt anyone in the process, and have a number of mitigating factors that should be considered before a criminal conviction is put on their record, making it that much more difficult for them to get a job, obtain housing, or otherwise remain or become contributing members of our community.

And it's our job as defense attorneys to make sure we put it all together for the prosecutor--to show them why a particular client deserves a second chance. We also need to educate that client along the way, and then show the prosecutor how the client has learned from the experience. It's our job to convince the prosecutor that our client won't make the same mistake again.

posted by Raman Gill   permalink   0 Comments