I am as "Law-and-Order" as anyone. I have no problem with mandatory minimums and I don't get worked up by the Sentencing Guidelines. I'm not anti-death penalty. I don't think drug offenders should get a chance at taxpayer-funded rehabilitation.While I avoid partisan politics here, my regular readers (both of them) will recognize that Shawn's feelings about the building blocks of the retribution system are different than mine. I am not as "Law-and-Order" as anyone. I do have a problem with mandatory minimums. I do get worked up over the sentencing guidelines. I am anti-death-penalty and I don't think drug offenders should even be "offenders." (Not to pick on Shawn, but his politics are also internally inconsistent -- it is in a post lamenting relevant conduct, the heart of the U.S. Sentencing Guidelines, that he claims that he doesn't "get worked up by the Sentencing Guidelines".) Anyway, Shawn's got me thinking about how the connection between politics and this job. Here's a little video in which I discuss whether someone in this line of work can remain oblivious to the larger political implications of the job: That's not, of course, to say that being politically libertarian makes someone a good criminal defense lawyer. Nor is it to say that Republicans provide deficient representation. But there are fundamental philosophical differences between the Republican worldview and the defender worldview. For example, the principle that the slings and arrows of fortune might relieve an individual of responsibility for his actions is foreign to the Republican philosophy (I have one friend, a plaintiff's lawyer in North Texas, who was compelled to leave the Republican party when he developed too much empathy). Defenders, however, stand up for the unlucky. None of our clients are as fortunate as we are. A critical part of the job is being able to explain to judges and juries how it is that our clients' bad luck contributed to their transgressions against the peace and dignity of the State. If we didn't believe it, we couldn't persuasively argue it. It might not make a difference in the simple cases -- the DWIs and possession-of-less-than-a-gram-of-cocaine cases. But the bigger the trouble, the harsher the sentence, the higher the level at which we play, the more important is the belief that what we do is right on every level -- that we are on the right side of the front lines in the epic struggle between governmental power and individual freedom. Another example: if I thought that mandatory minimums were okay -- that the morons in Congress had correctly decided that my client, and every other poor schmoe charged with the same crime, deserved at least 5 years (or 10 years or 15 years or 20 years or life) in prison, I would not carry my passionate aversion to government into the courtroom, and the people sentencing my clients would see the reasonable range of punishment as, say, 15 years to life (for the possession with intent to deliver 400 or more grams of cocaine case). I'd rather show them why the appropriate sentence is probation and let the jury about not being allowed to give the sentence that they think is right. If the sentencing guidelines were just alright with me, I wouldn't be going in swinging to every federal sentencing, trying to explain to judges that they really don't have to follow the guidelines and why they shouldn't. I wouldn't have gotten some of the sentence reductions that I've achieved for my clients, but life would be much easier without a soul.
Technorati Tags: criminal defense, philosophy
7 comments:
Okay. If anyone can tell me how to scale that video down, I'd like to hear from them.
Wow, what did I do to you? Just kidding. Great post, and I really enjoyed the video. I'll try to get into this later today with my post, but my point is that I don't think you have to be "anti-government" (and I hate to use that term, but it's the best I've got) to be a good criminal defense attorney.
I think there is a difference between thinking the many facets of the criminal justice system are fair or unfair, and being able to navigate through it successfully.
My personal political beliefs do enter into my defense. So do yours and Greenfield's and everyone else's. If they don't, something is wrong with you. But that fact doesn't hinder my defense. I'll put more in a post later. Thanks for getting me all worked up.
And by the way, it's Fort Worth, not Dallas.
I guess it's probably some of the only idealism I have left, but I like to imagine that, except for specialized skills that only work one way, we could turn the tables and make all the defense attorneys prosecute and all the prosecutors defend without causing any real disturbance in the system. A person with an honest desire to see justice done could fit in on either side, knowing they were fulfilling an integral part of a tried and tested, if not perfect, system for balancing the liberties of victims, defendants, and the public. I realize that I am probably 135 degrees from the truth, but where I am is a much nicer place than where alot of people seem to be. I do not agree that politics have to come into it. Rather, that politics is the wrong word. Socrates's politics were clearly opposed to the local custom, but his personal philosophy would not allow him set himself above the law. Libertarian prosecutor and statist defense attorney need not be oxymorons.
Yeah, look where that got Socrates.
Consider this, Colin: every expansion of police power has been argued for by a prosecutor and argued against by a defender. If all of those prosecutors had been libertarian, they wouldn't have argued for more police power.
If all of those defenders had been authoritarian, however, we would be much less free.
As a defender, I'm not terribly interested in "justice." In a retributive "justice" system, "justice" is somebody else's idea of how my client should be punished.
I don't believe that we humans have enough information to know what justice is, so I'm fighting for freedom.
I would rather be Socrates than OJ Simpson.
How can a community survive without a defense mechanism against those who would harm the community? I wait longingly for the day when our powers of rehabilitation can heal the hurt we cause each other. But until that day, the community must strive to deter that hurt. (I'm not a fan of retribution, but I've never been touched by violent crime.) It is, I believe, with this same attitude that the 6th amendment was written. The deliberate infliction of hurt on one of our own by the community is a solemn and necessary thing, not to be taken lightly or handed off to some bureaucrat. The jury panel is a check on government, but that is not all it is. It is a reminder to us that we are ultimately responsible for the actions of our government. Is every sentence fair? Hardly. Given our current situation, are many sentences necessary? I believe so. I find common ground with the opponents of drug laws, piracy laws, sex trade laws, capital punishment laws. But murder, battery, rape, arson, robbery, and their cousins cannot simply be ignored. Defending the accused is perhaps noble and constitutional, but it is not necessary to hate the laws to fill that role.
Freedom, like justice, is in the clouds. It's a useful ideal, much as peace is an important ideal, but there are just reasons to go to war and just reasons for the members of a community to agree to limit their freedoms. Is it important that we take seriously the degree to which we make that trade-off? Absolutely. But security is a necessary condition for community, and that necessary security we call justice and hope that in her blind scrabbling she acts with fairness and the morality of the community.
I realize that the passions and delusions that drive us can make a difference in our behavior. Instead of the idealized adversarial system that I imagine, I suspect that we have two armies of mostly lunatics railing at one another. I only hope it all comes out in the wash.
Colin,
Wow.
A government that did only what was necessary to protect the community would be a great thing. Idealism is fun, but idealizing the nature of government is naive. Governments are artificial creatures that, regardless of who serves them, seek more power. Their power comes at the expense of human freedom. When a democratic government wants to take your freedom, it convinces you to give it up. If you give a government an inch, it'll take a mile.
Criminal defense lawyering is about stopping the government from taking that next inch. For some, like Shawn, it's about playing within the (government's) rules, making us all more free by making each client more free. Others are playing a higher-level game, trying to back the government up and change the rules.
Railing lunatics or not, all of us defenders are are the perpetual loyal opposition.
You seem to imply that, because government grows like a fungus over anything it can, we should try to destroy all of government, knowing that we will fail but that in failing we will still do the best of all possible jobs of limiting government power.
pretty hilarious really
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