The Hunting of Justice (An Agony in Eight Fits)

 Posted on August 01, 2010 in Uncategorized

We have heard talk of "justice." Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves-whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.-Clarence Darrow

John Kindley's post here is built on a straw man:

What has so offended RCDLs, though, is my philosophizing about criminal defense, and specifically, my continued bristling at the idea that the job of the prosecutor is to "do justice," while the job of the criminal defense attorney is merely "to defend."

What John misses, and what I think a more experienced criminal-defense lawyer of his acumen and interests would see, is that the prosecutor's job isn't really to do-or even to seek-justice.

Sure, they say it is, and the rules and caselaw even agree with them, but prosecutors don't know any better than the rest of us-which is to say "at all"-what justice is, and if they don't know what justice is, they can't seek it. They can only seek their vision of it, which might be entirely wrong.

We criminal-defense lawyers humor prosecutors saying that they seek justice as we humor our mentally-disabled cousins: they're not hurting anyone, and correcting them would be a waste of breath. Besides, "seek justice" is a better lodestar than the alternative, "follow the law" (which principle is the engine that drives all governmental tyranny).

In substance, criminal-defense lawyers seek not justice but freedom. Our job is to get as much freedom for our clients as we can.

Imagine a continuum, with life in prison without parole (or death) at ten and no government sanction at zero. In a particular case, the prosecutor has some number in mind-his idea of justice. The criminal-defense lawyer (one who thinks we humans can tell what is just) might have some number in mind-her idea of justice. They could both be wrong. The just number could be higher or lower than both, or in between. Nobody-not the prosecutor, not the defender, not the judge and not you or me-knows.

So imagine that, in a particular case, the prosecutor thinks that justice would be seven. The criminal-defense lawyer (one who still thinks she knows what justice is) thinks that justice would be three. Should the criminal-defense lawyer fight to get three, and get her client to accept three (and justice! ? ) even when she could get less, or should she fight to get as low a number as possible (and injustice! ? )? She should fight to get as low a number as possible, because her responsibility is not to her fallible sense of justice, but to her client, who surely wants (and may even think she deserves) as low a number as possible.

In response to a trenchant comment on his blog post, John clarifies that what he really means by justice is procedural justice-due process. If so, the sentiment is unexceptionable.

But "procedural justice" isn't what most people think of when they hear "justice" (surely John doesn't think that prosecutors, when they talk of justice, mean "procedural justice"), and the post itself leads one to think that John was talking about substantive justice.

While it seems to me that John is crawfishing, maybe he's just now finding the words he's been looking for all along. So perhaps John will explain in his next post what, in his view, the difference is between "seeking procedural justice" and "just defending."

(Orthogonally: there is a building trend of passive-aggressiveness in the blawgosphere-lawyers criticizing other lawyers' ideas without naming the other lawyers. Norm Pattis has long written this way; Scott Greenfield and John Kindley seem to be joining him [edit: as is Jamison Koehler]. While I think I understand the impulse [is this the happysphere?], the practice usually seems contemptuous and is often dishonest. John's post, for example, by referring to "RCDLs" generally, conflates my thoughts with ideas of Scott's with which I don't agree.)