1. Joel Rosenberg
    December 22, 2008 @ 10:18 am

    Okay, I guess I’m more confused than usual. I would have thought that the criminal defense lawyer’s answer (which, by coincidence, also is mine) to “is it ethical to plead not guilty when you know you are factually guilty,” is, “yes” just as the answer to “is it unethical to plead not guilty when you know you are factually guilty,” is “No.”


  2. Ken
    December 22, 2008 @ 10:31 am

    Mark, I think your first sentence needs to say “is it unethical to plead not guilty.” Unless I am entirely missing your point.


  3. Mark Bennett
    December 22, 2008 @ 10:33 am

    You are both correct. I’m going to start sending my blog posts out for proofing.


  4. Raymond E. Foster
    December 22, 2008 @ 5:27 pm

    This really is introduction to justice stuff, but we keep telling undergraduates – justice is a process, fairness is an outcome.


    • Mark Bennett
      December 22, 2008 @ 10:20 pm

      No no no no no. Justice is both a process (procedural justice) and an outcome (substantive justice). The System is concerned only with procedural justice, but people in The World still care about (and hope for) substantive justice.


  5. Clay S. Conrad
    December 22, 2008 @ 10:48 pm

    What you call “procedural justice” I call due process. An unjust result does not become “justice” merely because the law has been meticulously applied. Such use of the term “justice” simply weasels all the meaning out of the term.

    To say “justice is a process” is only an apologetic for injustice according to law; law professors like to use such weasel words to avoid having their students worrying about justice, or what they like to call “public policy.” Law should be a means of codifying justice. When application of the law results in an injustice, the law becomes a perversion of its own principle. We should not allow ourselves to get sucked into the trap of contending that “justice has been done” when the outcome is an injustice. That bestows upon the system an air of legitimacy that it has not earned, and does not merit, when the result is an injustice.

    The typical response to that argument, of course, is that justice is subjective. I will use my own valuation of what is an injustice. Whose valuation would you have me use? Whose valuation would you use? However, I think there is far less divergence on these issues than is commonly believed — and I also think that when disagreement does occur it should be recognized and debated, not swept under the rug with the myth of “procedural justice.”


    • Mark Bennett
      December 23, 2008 @ 9:41 am

      Are you saying that outcome is everything, so that a fair outcome is just regardless of the fairness of the process?

      I want to clarify because that’d be an odd position for a criminal defense lawyer to take. We frequently (and properly) seek procedural justice (a fair system, due process) for our clients with no regard for what we might consider the substantive justice of the case.

      Procedural injustice bothers me more than substantive injustice because a) I know that I know procedural injustice when I see it (like Clarence Darrow, I don’t believe that we can truly say who deserves what); b) procedural justice is within our reach as human beings; and c) while procedural justice doesn’t guarantee substantive justice, procedural injustice guarantees substantive injustice.


  6. Clay S. Conrad
    December 23, 2008 @ 10:22 am

    I don’t understand what you mean by a “fair” outcome. I can’t assess that.

    I do think the outcome is more important than the process, per se. I’ve had clients acquitted after unfair trials. While in each case I had no qualms about the outcome, I could not say the trial was fair, as the judge was obviously prejudiced against us, and that prejudice was reflected in the rulings. I lost little sleep over those cases. Thus, procedural injustice in those cases certainly did not guarantee a substantively unjust outcome.

    The goal of due process, and of the legal system itself, should be to procure a substantively just outcome for the defendant. When it fails to do so, the legal system itself has failed.

    By substantively just, I do not mean conviction of the guilty, per se. I mean a just outcome. Conviction on an unjust law can never be just, no matter how plain the guilt. A draconian sentence can never be just. (Isn’t “an eye for an eye,” which we imagine to be so harsh, much more lenient than two years for a gram of blow, ten years for fifty pounds of weed, or 20 years for felony theft?) Conviction following a system that has violated the Defendant’s constitutional rights, or following State perjury, can never be just — as the State violation of those rights is a far worse crime than whatever the Defendant is accused of.

    I am not saying that due process (procedural justice, to use your term) is not a component of justice. (To my mind, the mere ARREST of a morally innocent person is an injustice, even if the person is legally guilty; the difference between the arrest and conviction is one of degree only.) I am simply saying that due process is a necessary, but not sufficient, condition of having justice done.

    My reason for responding is that I believe that calling due process “procedural justice” cheapens the term justice. It dilutes it; for an innocent person to be arrested, tried, convicted, and executed, all according to law, is not justice no matter how meticulously their procedural rights were respected. While perfect justice is impossible (I cannot imagine a system in which factually innocent people are never arrested) we should not become jaded to substantive injustice that we, as lawyers, do not feel it, as if on our own backs. Shrugging it off as “justice,” merely because the legal system has done its job, seems like an abdication of responsibility to me.

    What I like about being a lawyer is that every once in a while, if you are lucky, work hard, seek help when you need it, outsmart the State, and use every trick, resource, and skill at your disposal, you can wrest justice, kicking and screaming, out of the legal system. But I see that outcome as the exception, not the rule, and it is easy to get dispirited by the fact that in many, many cases — most — justice is not attainable. The inattainability of justice is what causes burnout, and, in fact, so many suicides amongst the defense bar. I find it helps to lay that particular card on the table, and keep trying.


  7. Mark Bennett
    December 23, 2008 @ 10:40 am


    Procedural injustice doesn’t necessarily guarantee substantive injustice in each particular case, but systemically.

    The criminal “justice” system is and — because it is designed and administered by humans — always will be a miserable failure at dispensing substantive justice (what I like to call “Justice with a big J”).

    Procedural justice without Justice is thin gruel, unless Justice would have meant my client losing.

    I think it’s helpful to tell The World that the “criminal justice” that eponymizes The System is not what The World calls Justice. I don’t think you and I disagree by much on that.


  8. Mark Bennett
    December 23, 2008 @ 12:04 pm

    “Fair” is, I think, a fair synonym for “just”.


  9. shg
    December 24, 2008 @ 5:13 am

    Interesting. I was more hung up on Jeremy’s use of the word “ethical” in the first place, in that ethics have nothing to do with mechanics of challenging an accusation in a complex system, regardless of factual guilt or innocence.

    I agree with Bennett’s position that procedural due process is a necessary component of systemic justice, though not a guarantee of a correct outcome. Ultimately, a just outcome is subjective. As a lawyer, I am less concerned with “justice” than prevailing. I’m fine with a not guilty verdict, even though it may not meet everyone’s idea of justice. As a citizen, my expectation of the system is different. Let’s not forget that we don’t fight for justice, but for our clients. We demand justice when it serves our purposes, and shield our clients from justice when it doesn’t. Let’s not forget that justice may not always be the best thing for our clients.


  10. Clay S. Conrad
    December 24, 2008 @ 9:12 am

    Of course “justice” is subjective. So is reasonable doubt (or any standard with the word “reasonable” in it.) So is obscenity. So are many, many things we deal with daily. We don’t shy away from those terms, or try to define them out of existence.

    As for ethics being subjective, I agree entirely. I also agree that there is a huge difference between being “ethical” and following the ethical rules, which often have nothing to do with ethics. For example, I know of a lawyer who got a public reprimand for failing to inform his client of his appellate rights. While, generally, that sounds reasonable, the client happened to also be a lawyer who did alot of appeals. So what was the point in advising him of his appellate rights? The rules require it, even if it is an exercise in futility. But to call it unethical to fail to tell a client what he already knows is absurd.


  11. Katie
    December 26, 2008 @ 5:44 am

    on 22 Dec 2008 at 10:48 pm6Clay S. Conrad
    Thank you for your compassion and empathy in pursuit of the inattainability of Justice for your clients but I question your comment re ‘The inattainability of justice is what causes burnout, and, in fact, so many suicides amongst the defense bar.’ as a questionalbe fact. Burnout, yes; suicides, no.


  12. Mark Bennett
    December 26, 2008 @ 11:59 am

    This is an example of an anonymous commenter with no credibility, vs. an identified (and known) commenter. We know that Clay knows his stuff; it’s possible, despite that, that Katie is right, but she’s given us no reason to believe that she is.


  13. Reader Mail, And My Final Attempt To Steer The Internet In 2008 | Social Services for Feral Children
    December 26, 2008 @ 3:53 pm

    […] People, I would.  In particular, if they wrote items as good as Bennett’s recent post on the differences between a lawyer’s and a layman’s understanding of the term “justice&#…, and the importance of procedural fairness to a society that claims to be run with the consent of […]


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