Criminal law and social justice.

The best criminal law blogs – ones like Simple Justice, Gamso For The Defense, Crime & Federalism, even Popehat (which is only occasionally about criminal law) – have something in common: they’re not so much about criminal law as they’re about social justice. (Mark Bennett’s excellent Defending People, meanwhile, is often about the actual practice of trial lawyering) I was thinking about this while reading a post on John Kindley’s blog People Vs. State, about whether or not criminal defense attorneys can be concerned with justice, or just their duty. Some say that the duty is all, and justice is out of their hands, and some – like Kindley – feel that they possess the ability to see justice done by representing their clients properly.

It’s an interesting question, and one that I have the luxury – as a non-attorney who merely works in the office of a defense firm – of considering without worrying what my answer might mean for, say, a guilty client. Kindley makes a good point, that if he feels a client is innocent, he can, in the name of justice, choose to reduce his fees. Hopefully he won’t work harder for an innocent client than a guilty one, but he might try to mitigate the inherent unfairness of having to pay large attorney’s fees when you’ve been falsely accused.

Anyway, this is interesting to me because, working in a criminal defense firm, I get into debates with friends and family sometimes over a variation of what attorneys call “the cocktail party question“: how do you defend guilty people? Every attorney at Sumpter & Gonzalez has a slightly different variation on the same basic answer that every defense lawyer gives (“someone has to”). I know this because, when I started this job and was trying to figure out if I was comfortable with this sort of work, I asked them all. Determining if my passion for social justice (which is how I ended up here) was compatible with the work of a criminal defense firm – without the benefit of a legal education to help me better understand the (frankly) inanity of the question – was a big thing for me.

I’ve bounced around that question a lot, and come to an answer that I find I’m quite comfortable with. I’m proud to work with women and men who decide every day that – no matter who comes through the door seeking an advocate – they’ll stand next to them. Whether they’re inherently good people, like most of them are, or not. Looking at someone no one else wants anything to do with, even when the reason people reject that person are his or her own fault, and saying, “I’m on your side” isn’t anything I feel conflicted about anymore.

But lord, those friends and family.

I still remember an argument I had a while back, probably about Roman Polanski, where a friend whose judgment I respect tremendously insisted that, in a case where guilty was as clear-cut as it seems to be in Polanski’s, the defense attorney’s job shouldn’t be to get the client off, it should be to see that he receives the minimum punishment. He’s a persuasive guy, my friend, and to the people following the discussion, he probably “won” (another reason I’m not a lawyer). But if that’s the case – if everyone involved has decided that he needs to be punished – then what’s the point of a criminal justice system at all? If every party, even the one tasked with standing beside the accused, determines that his or her judgment is correct and that person deserves punishment, then there’s not really any hope for justice.

Which is interesting to me, because it really explains how the argument about whether or not defense attorneys can work to see justice done (as prosecutors take an oath to do) is totally irrelevant. People, when they’re uniform in their desire to see a person punished, will not stop at what’s just. The very existence of a defense that will fight to see even a guilty man go free is what allows justice to be done in the first place.

(I wish I’d thought of that when arguing about Polanski.)

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