Monday, August 2, 2010

Justice Redux: Who We Are and What We Do Yet Once More

This started out to be a comment on Mark Bennett's latest (as I write this) post on "Justice" and "justice."  Actually, it kind of began as a comment on John Kindley's comment on Bennett's post.  But it was getting clumsily long, starting to feel like I was hijacking Bennett's piece.  So I decided to come over here and do my own.
Here's what passes for the background.  The criminal law blogospshere gets roiled from time to time with discussions about just what it is we do and why.  Kindley, at his blawg, People v. State, and in comments on other blawgs, has for some time staked out the position that he seeks justice.  Others of us, at various times, on our own blawgs and in comments on others', have said - and for somewhat different reasons and in different ways - that we don't.  (No links to specific posts here, but search around in Simple Justice and Defending People and Norm Pattis and A Public Defender and lots more.)
Well, as I suggested in the first paragraph, it's back in a string of recent posts by Kindley and Bennett and Pattis and comments by them and others.
Anyhow, in the comment that got me started on this, John wrote this (among other things).
Certainly it appears to me that most criminal defense lawyers I know in the blawgosphere and in real life have what I’d call a well-developed sense of justice. We are passionate and get pissed off about things, particularly about injustices perpetrated by state actors.  I believe some of us, if we could switch hats for a second, would gladly prosecute some of these abusers (and some of us, like Norm [Pattis, linked above] kind of do, via Section 1983). I bet some of us would be positively happy to see some of them in jail. Sadly, some of our clients have done things every bit as inexcusable and abusive as these State-sanctioned abusers.
That whole switching-hats thing gets at part of the problem, I think.
I'm a criminal defense lawyer.  I advocate for the interests of my client because I've chosen that job (or maybe it chose me, but that's another discussion).  I choose (we'll stick with that) to advocate for the interests of the criminally accused because at the end of the day, I think it makes for a better society to have what we euphemistically call the "criminal justice system" tilted strongly in favor of the criminally accused.  The state has too much power, power that it readily abuses.  One way to check that power, to rein it in, is to defend those against whom it is directed.
It doesn't matter, it's simply irrelevant, whether those people have actually done what the government claims they have.  Nor does it matter whether what those people are said to have done is what law professors like to call malum in se (bad in itself, say, murder) or malum prohibitum (a wrong only because some legislative or executive or judicial body says it is, say servicing a mare within 30 feet of a public street in Ohio.  I happily defend them because the government is out to get them.
But that I advocate for my client who may have killed someone, and that I am pleased if I am successful and the killer goes home, does not mean that as an abstract proposition I want murderers running around the streets.  I want my neighborhood (and yours) to be safe.  I'm not opposed to sanctions against those who would do us harm, and in appropriate cases, confinement for a time, even a long time, may well be an appropriate sanction.
And I'm certainly not opposed to those (I've done it to, though I don't currently) who use civil litigation to curb government abuse.  But I will defend, against criminal charges, those same allegedly abusive government officials.
Because as a criminal defense lawyer, I don't give a rats ass what they did.  I'm defending them against the power of the state.  Were I also doing 1983 work, I'd be going after them as agents of the state, on behalf of their victims, for abusing the power the state gives them.  Think victims, for a moment, and it starts to become clear.  The civil case victim of an abusive cop is the person abused.  The criminal case victim of a cop who abuses people is the government.  I represent people against governments, not governments against people.
Look, I'm a criminal defense lawyer.  I'm also a husband, father, brother.  I'm a balding guy with gray hair and a bushy mustache.  I'm a Mets fan (which is tough these days).  I am the owner of an automobile and a snow blower.  I am a reader of crime fiction and renaissance English literature, of books on particle physics and on legal philosophy.  I am dozens (hundreds? thousands?) of other things. 
As I say, I want safe streets.  I want a community free of dangerous people whether they are criminals or cops or just folks who happen to be dangerous but without either position or formal accusation.  But my job as a criminal defense lawyer is not to create, not even to enable that community.  It's to hold back the government.  It's the government's job to ensure - hell, nobody's ever put it better than the Preamble does.  The job of the government is plain:
[T]o form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.
That's a tall order.  And it embodies conflicting goals.  One is to "establish Justice,"  whatever the hell that means, but it clearly involves making up rules, which is a set up for trouble.  Another is to "insure domestic Tranquility," which is something like working to see that the rules are followed and keeping us safe from bad guys.  A third is to "secure the Blessings of Liberty."  That's liberty against the government.  (Remember, the same folks who drafted the Preamble also drafted the clauses permitting slavery; they clearly weren't concerned with liberty against private people.)
I choose (again, I'm taking responsibility for the choice here) to make my living, and to do my part to effect the goals of the Constitution on the "secure the Blessings of Liberty" part.  I don't see how you can sign on for both securing liberty and making or enforcing rules that, pretty much by definition, limit liberty.
I'm not an anarchist.  I operate within the system even when I don't much like it.  But my job occurs in my part of that system.  And that's just not the "justice" or "Justice" part.  Unless you make the terms meaningless.
Which brings me back to John Kindley.  He says in his latest post that those who disagree with him have
opined that my ideas are a menace to society so long as I’m practicing criminal defense.
I don't know.   I disagree with him about what the role of a criminal defense lawyer should be and about what we do conceptually.  But if he advocates zealously and fearlessly and competently for the best possible outcome for his client, innocent or guilty, and if he does that regardless of whether he believes that as an abstract proposition people do what he believes his client did should be publicly disembowled, he can be a fine criminal defense lawyer.
It'll probably be harder for him to be that fine criminal defense lawyer than one who doesn't have that cognitive dissonance, but the job is [typo corrected] ultimately about how we act, not how we feel.
Yet there is a danger to his conflating the roles of justice seeker and criminal defense lawyer.  It may not be a danger for John's clients, but it's a danger for the Republic.  If the Preamble's goals are to have substance, they need all to honored and advanced, not conflated.  One cannot simultaneously advocate for the people and for the state.  Bennett pointed out the irony of Kindley doing that in a blog he calls "People v. State."  That's exactly right.

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