Why the Why?

 Posted on January 26, 2009 in Uncategorized

I asked regular reader Interested Counsel, a British criminal-law barrister, for a list of points that he found interesting or was curious about regarding the U.S. criminal justice system. He obliged me, prefacing his email:

It is clear here that the Ministry of Justice is enamoured of all things American. It is easy for us at the Bar to put this down to their desire to commodify justice. But perhaps, I thought, there was something in it.So across the pond I virtually came and, rather than dry study, I thought I would look at those questions which are of interest to your criminal practitioners through your blawgs.

Most criminal-defense lawyers are more interested in how to make more money or win the next case than in becoming better lawyers overall, much less in understanding and describing the philosophical underpinnings of the job. That's why, in a country with tens of thousands of actively practicing criminal lawyers, there are only a handful of blogs like Houston DUI lawyer Paul B. Kennedy's The Defense Rests (I single out Paul becuase he has ventured, of late, into Defending People‘s Zen scavenger territory with posts like Survivorman and the Art of Trial Lawyering and Always Expect the Unexpected), New York criminal-defense lawyer Scott Greenfield's Simple Justice, or Virginia prosecutor (and video star... and cartoonist!) Ken Lammers's CrimLaw.

The why and how of what we do require a certain amount of thinking time that most lawyers aren't willing to dedicate to it (for those who aren't there are easy pat answers). The blawgosphere - at least the non-marketing part of it - is the domain of omphaloskeptic geeks who are far outside the norm; what you find there is not necessarily representative of the bar in general.

Interested Counsel continues:

I am fascinated by the debate regarding the ethics of prosecuting/defending which runs through many of the American blawgs. It is intriguing to see the ‘sides' which exist and how polarised their positions are. It worries me deeply that we might be heading towards that polarisation here, and I fail to see how it can be healthy for justice.

It is a fascinating debate. There are three sides. Broadly described, they are: 1) Prosecutors are right, and defense lawyers wrong; 2) Prosecutors and defense are both right as long as they are following the rules; and 3) Defense lawyers are right, and prosecutors wrong.

The first side is the one most commonly heard from the American public. They see that one side is putting criminals in jail, and another is keeping them out. Since the predominant public emotion is fear, the public decides that those putting criminals in jail must be the good guys.

This causes problems because a) the tend to public elect our officials, including (in some places) judges and prosecutors; and b) the public are going to law school and themselves becoming lawyers. Some of them become prosecutors; these young men and women have a mandate to seek justice, but no credible claim to the wisdom that to know justice, so the philosophical diet they've been fed before becoming lawyers is all they have to go on. Here in Harris County we had a chief prosecutor for years who claimed to be "doing God's work".

The most radical defense lawyer can agree that there are crimes that must be prosecuted, and that often punishment is appropriate. But, because of society's fear, we criminalize things that shouldn't be criminal, punish people who shouldn't be punished, and - even when some punishment is appropriate - exact harsher retribution than we should. Given that we live in a culture steeped in the idea that only government can keep us safe, it's natural that those of us who fight for the freedom of our fellow humans should push back hard, not only in court but also philosophically, against the sentiments that would make safety paramount. Put differently, government would (by its nature) make all of us less free;

The second side of the debate is the one that is taught in law school, where law professors who haven't actually practiced law in living memory extol the virtues of the wonderful U.S. criminal justice system.

It is possible that the American criminal justice system is better than any other, but it stinks. The error rate is huge - probably between.8% and 8% (see Fn. 17 of the linked article) of convictions are of factually innocent people. If Detroit built cars the way the criminal justice system prosecutes people, your car would burst into flames and maim you every couple of months, even if you just drove back and forth to work.

Even the greatest apologists for the system cite a.027% wrongful felony conviction rate (a number that is highly suspect - see the discussion of the appropriate denominator in the article linked to above), as though 27 innocents out of every hundred thousand people convicted of felonies is an acceptable number; sticking with the automobile analogy, if the auto industry had the same error rate, one out of every 3,704 car trips would result in catastrophe. Given odds like that even the Big Three would have changed their ways years ago. The apologists would say that this is the cost of safety and order, but if imprisoning people made us safer we would be the safest nation on Earth.

Surely we can do better.

Given that the system is broken, we have a duty to try to improve it. If the truth is that the system is broken, we need to tell the truth about it. If the truth is that our government is trying to make us unduly afraid, and then using this fear to imprison us, the people - those who will listen - need to know it.

Is the polarization of positions healthy for justice? I can't help but believe it is; it is the adversary process writ large.

We have professional prosecutors, career employees of the government, dedicated to the ends of their master. If we didn't have a professional criminal defense bar pushing back just as hard against those ends, there would be nothing to stop government from doing whatever it wants. (Contrast that with a system, like the U.S. military's or yours, in which lawyers might take either side.)

We are a nation born in revolution. Our founders did not trust government, and they did not think they were leaving us with a government that we could trust. They saw resistance to government as good for freedom. Thomas Jefferson wrote in 1787 of Shays's Rebellion:

We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & a half without a rebellion? & what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two?The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.

That is our heritage. Some honor it by swearing loyalty to the flag and firing off a few fireworks on the Fourth of July. Others honor it by preserving the spirit of resistance, by challenging the government to get it right, and by motivating others to do so.