Sunday, January 2, 2011

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.


  1. I think there's a difference between measured retribution and impassioned overzealous vengeance. I don't see how deterrence, incapacitation, and rehabilitation can or should displace retribution in the criminal justice system. The prescriptions of general deterrence, in particular, would seem to overlap with those of measured retribution. Would the aims of rehabilitation, incapacitation and specific deterrence be sufficient to fashion an appropriate punishment for those Pennsylvania judges who sent kids to kiddie prison in exchange for kickbacks? Measured retribution doesn't necessarily demand a strict eye for an eye, or that murderers should themselves be murdered.

    As far as the "disagreement" over the role of the criminal defense attorney that "Atticus" (he really should get a better pseudonym, or better yet shed the anonymity) cites in his post, I've long thought this was a disagreement more over form and emphasis than substance. One side is concerned to ensure that the criminal defense attorney zealously represents a client he's undertaken to represent heedless of the client's "guilt" or "innocence." The other side is concerned with the real and perceived moral stature of criminal defense attorneys relative to prosecutors. I take the latter side because I don't think it is in fact inimical to the concerns of the former side.

  2. You don't see it the difference between "measured retribution" and "vengeance." But there is no objective measure, which is part of what Bennett said (and Greenfield and the rest of us have been saying). And if there's no measure - or if there's no objective scale - then retribution is just blood lust and the only question is how much blood. As Shaw said, "We've established what you are. Now we're just haggling over the price."

    As for that disagreement, it's not a side issue. If you feel the need to adjust the terms before you can accept that defending is, in itself and on its own terms, deeply moral, then you're back with the student who wanted to be a criminal defense lawyer and thought it required some special sort of morality because by any ordinary standard she could accept, it was immoral. It's possible to do well things one believes immoral, but the criminal defense lawyer (as opposed to a lawyer who defends accused criminals) doesn't have that problem.

    I'm being crabby, but we've been down this road too many times already.

  3. Yeah, you're right. Let's just let those Pennsylvania judges go. "Incapacitation" has been satisfied because they've been removed from the bench, and I doubt they'll now turn to robbing banks. I'm sure they have seen the error of their ways by now and are "rehabilitated." And I bet the mere exposure of their crimes and their removal from the bench has effectively "deterred" them from ever doing that again. They no longer represent a danger to society, so just let em go.

    I regret extending the olive branch to you on that old "disagreement." Your blatant mischaracterization of my "side" suggests you still just don't get it, haven't tried to get it, and don't want to get it. In no way have I ever suggested that it is in any way "immoral" for a criminal defense lawyer to fight his hardest for the outright acquittal of a child rapist and murderer he knows to be guilty. You'd know that if you ever read anything I ever wrote on the subject. If you think my citation of Bugliosi's policy as a criminal defense attorney suggested otherwise, you might want to ask SHG about his policy as a criminal defense attorney when it comes to representing people charged with sexual abuse of children.

    But let's let it go. My extension of the olive branch was obviously premature. Maybe someday you'll get it. Let's agree to disagree on a point that you think demonstrates I'm not a criminal defense lawyer.

  4. Jesus, Gamso. No "objective measure"? Fine, then, it's all relative and there's no ascertainable reason to argue with Kindley or me, or to blog, or to defend either, other than it's "what we do", which of course has no point either because there isn't one and there never is.

    I'm crabby, too. You're fucking brilliant, and you indulge in this drivel? So it's all "blood lust". So what, then? What's the problem? It's "what we do".

    I'm bored.

  5. Nice post, Jeff. This particular sentence The law is at its worst when it tries to satisfy our visceral reactions or [allay] our fears. should be engraved on the business end of a medieval mace, then the mace should be used on each and every legislator's fat head until it is memorized and completely understood.