The Hunting of Justice (An Agony in Eight Fits)

We have heard talk of “justice.” Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves—whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

-Clarence Darrow

John Kindley's post here is built on a straw man:

What has so offended RCDLs, though, is my philosophizing about criminal defense, and specifically, my continued bristling at the idea that the job of the prosecutor is to “do justice,” while the job of the criminal defense attorney is merely “to defend.”

What John misses, and what I think a more experienced criminal-defense lawyer of his acumen and interests would see, is that the prosecutor's job isn't really to do—or even to seek—justice.

Sure, they say it is, and the rules and caselaw even agree with them, but prosecutors don't know any better than the rest of us—which is to say "at all"—what justice is, and if they don't know what justice is, they can't seek it. They can only seek their vision of it, which might be entirely wrong.

We criminal-defense lawyers humor prosecutors saying that they seek justice as we humor our mentally-disabled cousins: they're not hurting anyone, and correcting them would be a waste of breath. Besides, "seek justice" is a better lodestar than the alternative, "follow the law" (which principle is the engine that drives all governmental tyranny).

In substance, criminal-defense lawyers seek not justice but freedom. Our job is to get as much freedom for our clients as we can.

Imagine a continuum, with life in prison without parole (or death) at ten and no government sanction at zero. In a particular case, the prosecutor has some number in mind—his idea of justice. The criminal-defense lawyer (one who thinks we humans can tell what is just) might have some number in mind—her idea of justice. They could both be wrong. The just number could be higher or lower than both, or in between. Nobody—not the prosecutor, not the defender, not the judge and not you or me—knows.

So imagine that, in a particular case, the prosecutor thinks that justice would be seven. The criminal-defense lawyer (one who still thinks she knows what justice is) thinks that justice would be three. Should the criminal-defense lawyer fight to get three, and get her client to accept three (and justice! 😀 ) even when she could get less, or should she fight to get as low a number as possible (and injustice! 🙁 )? She should fight to get as low a number as possible, because her responsibility is not to her fallible sense of justice, but to her client, who surely wants (and may even think she deserves) as low a number as possible.

In response to a trenchant comment on his blog post, John clarifies that what he really means by justice is procedural justice—due process. If so, the sentiment is unexceptionable.

But "procedural justice" isn't what most people think of when they hear "justice" (surely John doesn't think that prosecutors, when they talk of justice, mean "procedural justice"), and the post itself leads one to think that John was talking about substantive justice.

While it seems to me that John is crawfishing, maybe he's just now finding the words he's been looking for all along. So perhaps John will explain in his next post what, in his view, the difference is between "seeking procedural justice" and "just defending."

(Orthogonally: there is a building trend of passive-aggressiveness in the blawgosphere—lawyers criticizing other lawyers' ideas without naming the other lawyers. Norm Pattis has long written this way; Scott Greenfield and John Kindley seem to be joining him [edit: as is Jamison Koehler]. While I think I understand the impulse [is this the happysphere?], the practice usually seems contemptuous and is often dishonest. John's post, for example, by referring to "RCDLs" generally, conflates my thoughts with ideas of Scott's with which I don't agree.)

14 Comments

  1. “He should fight to get as low a number as possible, because his responsibility is not to his fallible sense of justice, but to his client, who surely wants (and may even think he deserves) as low a number as possible.”

    For the Navajo, their notion of Justice is to “Walk in beauty”. When one breaks the rules of their society, they are not walking in beauty. So, a ritual is held to bring the offender back towards “walking in beauty” where one is harmonious with his surroundings and tribe. Tribal Justice is then a ritualized process of restoration, not punishment. You all would be out of work, unless you changed jobs to become a Healer. Or, just maybe that is really your work as a Defender? And Justice defined as a return to a state of harmony within the laws and customs of the tribe? The alternative method is to take a stick and beat a man into submission. 🙂 Ric

  2. Maybe I have been addressing a straw man. Certainly it appears to me that most criminal defense lawyers I know in the blawgosphere and in real life have what I’d call a well-developed sense of justice. We are passionate and get pissed off about things, particularly about injustices perpetrated by state actors. I believe some of us, if we could switch hats for a second, would gladly prosecute some of these abusers (and some of us, like Norm, kind of do, via Section 1983). I bet some of us would be positively happy to see some of them in jail. Sadly, some of our clients have done things every bit as inexcusable and abusive as these State-sanctioned abusers.

    This territory has indeed been explored before at length on your blog and others. I’d been on a Bugliosi kick (his And the Sea Will Tell is really a tremendous book on criminal defense); what he’d said about how he chose his cases seemed pertinent to your post on Spence (and admittedly seemed to me to vaguely support my position in our old discussion) so I quoted him in a comment; and off we went again. Maybe none of it matters to what we do day-to-day, and I understand those who are exhausted by it. I’m exhausted by it myself, and don’t want to be a bore. Maybe where it matters, as I suggested in my most recent post, is in how the larger public perceives us. Maybe we’re not perceived as well as we should be because we don’t give ourselves — or at least what we do — enough credit. Bugliosi wrote a book seriously calling the Justices who decided Bush v. Gore traitors and another book seriously advocating the prosecution of Bush for murder. (BTW, I’m not a Democrat, and I don’t think Bugliosi is either.) While none of us can be blamed for not getting any book deals, I think his evident passion for justice is worth emulating, even by criminal defense attorneys.

    I made the “procedural justice” point in the comment on your blog that I linked to in the body of my latest post. The point being that the whole raison d’etre of procedural justice, entailing the effective assistance of counsel for the “innocent” and the “guilty” alike, is substantive justice.

    I avoid engaging SHG directly because he’s made it clear he doesn’t think I’m worth engaging.

  3. Because somebody else also seemed to be confused by it, I should clarify that in the “response” you link to I basically only meant what Bugliosi meant when he wrote that “the right to counsel is a sacred right in our society and much more important than any personal predilection I might have.” Also, I agree with what Clay Conrad had to say in the comment thread to the post you link to on “procedural justice.”

    1. You mean you agree with:

      Such use of the term “justice” simply weasels all the meaning out of the term.

      or with:

      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.”

      or with:

      My reason for responding is that I believe that calling due process “procedural justice” cheapens the term justice.

      When I wrote that the sentiment was unexceptionable, I was wrong. Clay, if he were still around reading, would take exception.

      What we believe is important to how we defend;I will never tire of the topic.

      1. I also am not tired of the topic, at least not for good, though it seemed others were exasperated by it (the title of your post suggested as much). The nature of the topic, like the history of philosophy itself, lends itself to the feeling that one is going over old ground in the effort towards a clearer understanding. I don’t pretend to the clarity that others profess.

        I agree with pretty much everything Clay wrote in the thread, but in this context especially this:
        “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.”
        and this:
        “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.”
        and this:
        “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.”

      2. I’m not sure you understand what Clay’s saying, but you keep changing your focus so much that I’m pretty sure you don’t understand what you’re saying.

        Why don’t you write another post on your blog explaining your position? Not pretending to clarity is a good first step.

  4. My view is actually mathematical:

    Lots of people deny there is substantive justice, claiming it is a meaningless term. Yet almost nobody denies that, say, executing an innocent man would be a substantive injustice.

    So, if there can be a substantive injustice, then there must be, by elimination, substantive justice. While we cannot know it perfectly, when it ceases to be foremost in our minds, we become mere pencil-pushers.

    Ideally, the jury, as the conscience of the community, should decide where justice lies, instead of jaded professionals like judges, prosecutors, and defense lawyers. Over the last 100+ years, juries have been practically, although not actually, stripped of that role due to ignorance and misguidance. Moreover, so few cases go to juries any more that they are practically statistically irrelevant.

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