Defending "Those People"

Anyone who represents Defendants in criminal matters has been asked the question over and over again: How can you defend those people? The moral assumption underlying that question is inescapable: to try to keep someone who is probably guilty from being punished is wrong/evil. I concede that this is a valid assumption. Having made that concession, how then do I justify defending people when I know that by far the larger number among them are probably guilty?

Well, in a great many cases I just look the person in the eye and say, "It pays the bills" or some variant thereof. I have learned from experience that most really don't want to hear an answer, particularly if it involves some thought or might challenge their world view. And it is amazing how many people will happily accept this reason despite the fact that it is, at best, an amoral position.

If someone seems to be expressing a real interest I go to the fairly basic answer which is reflected in statement which was previously at the top of this page:

If I choose to defend only the Righteous,
When the Rigtheous are accused,
What tools shall I have to defend them?

The statement has something of a double meaning. One interpretation is that if I don't practice except in the rare ocassions when there is someone I am certain is innocent, I shan't develop the skills to be able to defend that clearly innocent person when such skills are desperately needed. The second is that I must fight on in an attempt to preserve those rights and protections which exist for all citizens. Should these rights and protections slip away in the process of making sure "the guilty" go to prison when the truly innocent are brought to trial there will be nothing left to keep them from just being pushed through the system toward an unjust conviction. Thus, the evil of not performing the duty of defense is greater in the long run than the evil of defending those who probably committed the crime.

Still, personally I find this answer unsatisfying - particularly in the major criminal events: the Sniper attacks in DC, the Oklahoma City bombing, the killing of a pregnant mother, etc. The actual reason which I find in my heart is more complex and involves religious value judgements. What follows is an attempt to explain the reason I believe criminal defense attorneys morally correct in their defense of those accused, no matter who the accused is or his actual level of guilt.

I proceed from these base principals:

(1) To harm another person is a sin.

(2) It is impossible to live life without harming other persons.

(3) It is our duty to sin as little as possible.

(4) As members of a democratic republic we are responsible for every act of our government.

The cornerstone of this is that harming another, no matter whom you harm or how slight the harm is sinful. You could make the same argument that I make below by making some sort of "moral imperative" rationale but that just doesn't work for me. Personally, absent the argument of moral requirement, I do not find persuasive non-theistic arguments for moral behavior. Frankly, without a requiring agent nothing is actually necessitated beyond that which leads to an ordered society. An ordered society does not necessarily worry that a certain percentage of its populace is harmed as long as society continues to function.

My faith informs me that we all live sinful lives. Even were we still in an innocent state as proclaimed by the story of Adam and Eve in Genesis the innocence would not come from the fact we committed no sins but in the fact that we would have had no intent to do so. Remember, the tree was not about good and evil it was about the knowledge of good and evil. Gen. 2:16-17 & Gen. 3). Whether you believe this to be the literal Truth or a co-opted Mediterranean creation story meant to show creation and fall at the hands of One True God (rather than a multitude) it is instructive as to the presence of sin.

As I see it, the harm of others is clearly a sin. Throughout the history of my faith it has moved more and more openly to this position. The Mosaic code seems to have been an attempt to stop disproportionate harm to others by replacing things such as blood feuds (two of them for every one of us) with lex talionis. Exodus 21:23-25 In the immediate period prior to the life of Jesus it is instructive that this had evolved to: "That which is despicable to you, do not do to your fellow, this is the whole Torah, and the rest is commentary." Shortly thereafter came the "golden rule": "Do to others as you would have them do to you." Luke 6:31. In more modern times I look at the Church's teaching on the death penalty: forbidden unless there is no other means to keep the person from harming others.

The problem is that, given a little thought, one comes to realize that every act or act of omission causes some sort of harm to others. You work hard and get a raise and the person in the next office doesn't; you don't work hard and don't get the raise and provide less for your family than you are capable of doing. Now, I have purposefully chosen two fairly innocuous examples rather than a parade of horribles in order to emphasize that in most cases the harm, and therefore the sin, is minor and even goes unnoticed. Nevertheless, in every single choice of action either choice will render some harm to someone. This is a "but for" standard not a "proximity" standard.

Under this reasoning it follows that any act of the government which deprives someone of any basic right such as liberty is a sin. Often it is a necessary sin. Entering a suspect's house under the auspices of a warrant, gathering items from that house, and throwing the suspect in prison for the rest of her life because these items prove she is a serial killer are all necessary evils. They must be done in order to protect society at large despite the fact that they harm an individual. We are willing to sacrifice and do such evil acts because they are overweighed by the halting of greater evils.

We are responsible for the acts of our agents and those who serve in the government are the agents of everyone in the nation. Every harm which they perpetrate is imputed upon us all. The burden is to make sure that no greater harm is passed on then necessitated by the circumstances. Although not an exact fit, I think St. Thomas Aquinas' statement is instructive:

Human law is law
Only by virtue of its accordance with right reason,
and
By this means it is clear that it flows from Eternal Law.
In so far as it deviates from right reason
It is called an unjust law; and in such a case,
It is no law at all, but rather an assertion of violence.

Reason calls us to limit that amount of harm which our agents do in order to keep the attribution of that extra harm from ourselves. At any time the government steps beyond the necessary harm required by reason it is committing a violent act for which we are responsible. It is no answer that the sovereign is the actor for we are the sovereign as long as we have the franchise.

The role of Defender is to make sure that our government in its laws and punishments does not rise to the level of an assertion of violence because it has strayed beyond reason. It is, perforce, an imperfect solution. The Defender is an advocate for only a single individual at a time and must fight within the boundaries as they are laid in existing statutes and case law. Thus, for instance, he is not in a good position to do anything about the fact that under Virginia's laws licenses are suspended far too easily (usually punishing the lower working class for not being able to pay fines in time or get insurance while providing no alternative but to break the law in order to drive to work) or that the federal sentences are badly out of kilter (see my prior posts here & here). Still, it is a vital role. The Defender is the person who stands between society and the descent into vengeance.

Vengeance, as one might suspect, has no place in the system as I perceive it. Deterence and protection of society at large are valid goals which can balance appropriately the evil inherent in harming that particular member of society accused - if he is in fact found guilty.

On the other hand, vengeance is not a valid reason to harm another. It rises out of the base emotions of anger and, more deeply, out of fear. There is no such thing as a fair trial or an appropriate punishment when vengeance is involved. There is assumed guilt and a rush to overpunish. It is what has driven us in the past to acts such as lynchings or stonings. It is the greatest threat to a just, balanced system because it is never satisfied. Rules and rights will be bent or abolished because they get in the way of proving someone did what he is accused of having done. Punishments will be out of proportion because revenge is never satisfied at an appropriate level: it wants the sense of shock and fear caused by a disproportionate punishment because that gives the sense that the accused has then been as affronted as much as the victim is supposed to have been.

The Defender stands as the bulwark against such perversion. He does everything in his power to preserve the rights, rules and appropriate sentencing which guarantee the system will remain just, balanced and harm none further than is necessary. In fighting the thousands of individual battles he contributes daily, at the very least making the attempt to keep our laws and legal system from slipping into a mere assertion of violence. He fights against overharming individuals through unproven convictions and convictions made through the destruction of those rights and laws protecting everyone; he fights against the constant cry to overpunish. In so doing he keeps the stain of excess harm from society at large. He performs a most necessary service for us all.