The latest discussion of the ethics of a factually-guilty person putting the government to its burden, which started with Illinois criminal-defense lawyer Jeremy Ritchey’s post here, then bounced to my post here and back to Jeremy’s here and onward to Virginia prosecutor Ken Lammers (a good discussion will do that, you know), here, who adjusted the question from one of ethics to one of morality, which didn’t escape ABA Top Criminal Law Blogger (and, in his spare time, New York criminal-defense lawyer) Scott Greenfield’s attention; Waco criminal-defense lawyer Walter Reaves followed Scott in weighing in.
On Ken’s blog, Ken and fellow Virginia prosecutor Tom McKenna (Seeking Justice) take different but complementary positions on the immorality of a wrongdoer pleading “not guilty.”
Tom (and Ken in his blog post, though he disclaims the idea in a comment) says that “to wilfully violate a just law enacted by legitimate authority” is immoral.
Ken says (in the comment) that it is not necessarily immoral to violate the law, but that “not taking responsibility for the act which she committed” is immoral.
This is all, from a criminal lawyer’s point of view, incredibly goofy.
Laws are written by people. Not only by people, but by congresspeople. Congresspeople have proven time after time that they can hardly be trusted to make ethical decisions for themselves, much less moral decisions for the rest of us. The penal code, written by a committee of congresspeople, is in no way a moral code. Some laws are just, some are unjust, and some are just plain stupid. Murder and rapine (and the rest of the back half of the Decalogue) are generally wrong, but violating a stupid law or a regulatory law, even if the law is not unjust, is no more immoral than not violating it.
Tom invokes “the children” in his argument for treating laws as moral
precepts. For my part, I’d like for my children to be able to tell the
difference between the things they shouldn’t do because they’re illegal and the things they shouldn’t do because they’re wrong. (Otherwise they might wind up prosecutors.)
Whether violating the law (specific or general) is immoral or not, putting the government to its burden by persisting in a plea of “not guilty” is in no wise immoral. Just as the legislature (being a human institution) is incompetent to tell us what is moral and what isn’t, the courts (being a human institution) are incompetent to say what the appropriate punishment should be for our sins. Just as legal punishment doesn’t provide moral remission, avoiding the law’s sanction is not avoiding that favor. Messrs. Lammers and McKenna are there to put lawbreakers in boxes (actual and metaphorical), not to offer them absolution. In other words, if you want to confess, see a priest.
If one person pleads guilty, he permits the government to throw more resources at its other cases. The government prosecutes factually guilty people and factually innocent people. It can’t tell the difference. The more resources the government throws at a case, the more likely it is to convict that accused. So by pleading guilty the factually guilty accused makes it more likely that a factually innocent person will be convicted. That sounds immoral to me.