Who We Are and What We Do - Once More Into the Breach

Think of this as an extended comment on Mark Bennett's brilliant opening entry into the competition for best criminal law blot post of 2011.

Already Matt Brown and John Kindley and the anonymous scold Atticus have weighed in with their own posts on it (and Kindley pretty much made his a comment, too).  Me, I hesitated to weigh in at first because I couldn't think of anything to add beyond what Lee Stonum pointed out (and what I said above): This is a likely nominee for best criminal law blog post of 2011.  But as I've gone back and read the comments (and the posts by Brown and Kindley and Atticus), I started to write my own comment.  Except the damn thing was getting so long, I said (to myself) "the hell with it," and decided to just write my own post.

So, if you're interested enough to be reading this, and if you haven't read Bennett, you should.  Go ahead.  I can wait.

If you won't do that, here's the very quick version:

Prosecutor argues that guy who got convicted of causing a death while driving drunk should do life so as to send a message to others who would drive after drinking more than the law allows.

When the judge sentenced Howard to life in prison, he was not punishing him only for his bad act—driving a car after drinking too much—but also for the unintended and random consequences of that bad act. The difference between DWI and intoxicated manslaughter is nothing more than lousy luck; Jim Howard didn’t get life in prison because of his act, but because of the unforeseen consequence of that act, out of his control once he committed the act. His act would have been the same, and his culpability no less, if he had made it home safe.

But we have this impulse toward retribution.  And it gets in the way of making punishment actually relevant to conduct.  (Here we go back, although Mark doesn't reference it, to Jacqueline Goodman's brilliant punishment argument).  Nobody who drives drunk intends to kill by doing it.  And it almost never happens.  We can't deter people from things they don't intend to do by increasing the punishment for random consequences of conduct.
Then, it turns out that a prosecutor who argued for especially harsh sentences for those convicted of DUIs - on the theory that such sentences would deter others from the same offense - gets busted for a DUI.  And while it's almost instinctive, unless perhaps the arrestee is a friend or relative, to feel a frisson of pleasure in the irony. 

Schadenfreude, don't you know.  And blawger Murray Newman, a former prosecutor and friend of the newly arrested prosecutor, doesn't like it.

But Murray's missing the point.  Human emotions, like schadenfreude, simply aren't relevant to our work as criminal defense lawyers,  And the presumption of innocence isn't a mantra to apply at all moments and in every context.  Defending isn't about sharing our clients' emotional baggage or necessarily believing that they didn't do what they've been charged with.  We separate out the personal reactions we might have and defend.

That's not an altogether fair summary, certainly not as eloquent as what Mark wrote.  But it'll do for my purposes here.

So, First, I don't know any of the players.  I've never met Mark or Murray or (as far as I know) the arrested prosecutor.  I don't think that matters.  Maybe the distance even helps.

Second, the presumption of innocence, insofar as it exists at all, is a legal presumption that has to do with burdens of proof at trial (and is tied to why there's a right to bail/bond in most cases).  It is dangerously naive for a criminal defense lawyer (or a lawyer engaging in criminal defense - not necessarily the same thing) to equate the presumption of legal innocence with an assumption of factual innocence.

I cringe when I hear some wheezing civil lawyer suggest that he'd happily do a bit of pro bono criminal defense just as long as he knew the defendant was factually innocent, as if it would violate some noble principle to take on the defense of one who just might have done something akin to what was charged.

Most of my clients have, in fact, done something within hailing distance of the offense charged.   I've represented the factually innocent; it's not something I much like doing.  I don't know any criminal defense lawyer who does.  And I'm damn sure I'd rather live in a society where most of the folks who are arrested did, in fact, do something like what they are charged with.  I don't know anyone who'd prefer a world in which the cops mostly arrest factually innocent people.

Third, schadenfreude may not be the noblest of sentiments, but it's pretty well ingrained in the human psyche.  It strikes me as a lousy basis for moral judgment, but that's why it's not part of the so-called criminal justice system.  Still, pretending that we're immune to it - or being offended that others feel it too - is a whole different sort of problem.  There's a reason we wonder who watches the watchers, who spies on the spies, who polices the police.  The hypocrisy of the righteous nailed violating precisely the rules they would impose on others (think Eliot Spitzer or Larry Craig or Mark Foley, just to focus on politicians and sex) gives a hint of pleasure to those who appreciate irony and have no personal stake in the case.

Fourth, and this is really the point, neither schadenfreude nor retribution serves as much of a template for how any scheme of criminal "justice" should be employed.

I understand the desire for retribution.  I wrote before about being a crime victim.  I expressed my personal desire then.

And I'd like to see the bastard who did this spend a few years behind bars doing very hard time in the company of folks who are eager, willing, and able to inflict maximum pain and humiliation on him.

I have friends who've been raped, who've been sexually abused by family members, who've been victims of burglary and robbery.  I've known a couple of people who were murdered.  I get it why Michael Dukakis gave perhaps the worst presidential debate answer of all time to Bernard Shaw's question about the hypothetical rape and murder of Kitty Dukakis.

But I also get it that his answer was exactly right in substance.  The law is at its worst when it tries to satisfy our visceral reactions or our fears.  Megan's Law, the Adam Walsh Act, the death penalty, LWOP for kids.  Prohibition.  Censorship. Scope or grope.  Much as we might delude ourselves into believing otherwise, these don't make us safer.  They sure as hell don't make us more free.

We do what we do, we who are criminal defense lawyers, not because we don't have human emotions - fear, love, schadenfreude - and not because we believe that everyone charged with a crime is an innocent victim of police error (intentional or reckless or negligent or whatever).  We do what we do in spite of those things.

I wouldn't defend the guy who broke into my car (aside from that whole thing about being a witness against my client) precisely because I couldn't set my own feelings aside.  Beyond that, setting them aside is what we do.

If we can't do that, we're in the wrong business.

If we don't understand that, we may defend the criminally accused, but we're not criminal defense lawyers.