Mark Bennett said on January 05, 2009  

Ken,

Driving with a suspended license is immoral? Failing to signal a lane change is immoral? Possessing marijuana is immoral?

Lots of our laws are mala prohibida. Violating such a law is (by definition) not immoral.

Even when a crime is malum in se, the penalty for the crime is not necessarily just.

We don't trust our legislatures to decide what is moral and what isn't. And we shouldn't. The criminal "justice" system is a human-designed system. Morality has very little to do with it.

As the system is not there to judge the morality of the decision to plead not guilty, it's not there to judge the morality of the underlying conduct.

You should know better.

 Anonymous said on January 05, 2009  

Me thinks Mark has missed the point. Ken is not arguing that every violation of the criminal code is immoral. He stated rather plainly that the immoral act is in subsequently denying responsibility for breaking the law.

 Mark Bennett said on January 05, 2009  

"Once a defendant has broken the law, the personal moral responsibility for the act lies at her feet."

(My emphasis.)

If the act is not immoral, then there is no personal moral responsibility (at least no responsibility in the pejorative sense) for the act.

Ken's not saying that it's immoral not to accept legal responsibility for an act that is malum prohibidum. If he were, though, that'd be equally goofy.

 Anonymous said on January 06, 2009  

Yes, but you're leaving out the rest of the paragraph, which provides the context.

Once a defendant has broken the law, the personal moral responsibility for the act lies at her feet. As such, she acts immorally if she denies that responsibility. A plea of not guilty is an attempt to deny responsibility. Therefore, a plea of not guilty is an immoral act.

Ken, maybe you can clarify your thoughts, but I take your argument to be that it's the denial of responsibility that you see as the immoral act. Not necessarily the crime itself. ?

 SFLawyer said on January 06, 2009  

The way I understand it, the moral culpability here lies in the defendant not taking responsibility for their act by not admitting guilt, if they are in fact guilty. The assumption is that the defendant does in fact believe they committed a crime, but are not taking responsibility for it in court. Since you admit this is irrelevant to the criminal justice system, the court, and all the attorneys involved, wouldn't it be more appropriate to eliminate the noun "defendant" entirely? We are dealing with personal responsibility, even responsibility in the eyes of God, as you say; not moral responsibility in a court room or to society.

From a philosophical standpoint, I don't really have a problem with this point. From a legal standpoint however, it is irrelevant, as you said. Defendants bear no societal responsibility to admit guilt. Society does not run on the honor system, even though it might be nice if it did. (Or was even possible).

My point is basically that this is all well and good, but what does it mean to you as a prosecutor if it is legally a moot issue? I would counter that the real legally relevant issue here is then prosecuting someone who is in fact not guilty, especially if facts arise which make the prosecutor believe the defendant did not in fact commit the crime, at any point in the proceeding. Isn't it just as bad, if not worse, to make someone who did not commit the crime take responsibility while the real perpetrator roams free? Does this make you think a lot harder about whether you actually believe the person did it or not? From my experience, prosecutors don't have as much leeway to prosecutor or not prosecute as legal ethics professors and textbook writers would like. The utopic ideal that all prosecutors fervently believe in their cases and at all times in the proceedings believe 100% that the charges they are pursuing are valid and true is often not the case. Would you agree with that? If that is true, then I would think your observation bears more legal responsibility for you, while comparatively little to none for the defendant.

 Ken Lammers said on January 06, 2009  

Yes, this post is about the morality of the defendant not taking responsibility for the act which the she committed - not the underlying offense.

How is this relevant? Well, it's moot if she pleads not guilty, but if I, the prosecutor, believe that a person is taking responsibility for her acts I should take that into consideration in making a plea offer. A judge having the same belief should also take it into account in a sentencing hearing.

 Rick Horowitz said on January 07, 2009  

Ken, I'm really trying to gain an understanding of what usually seems to me to be a rather unfortunate, cynical and (yes, I'm sorry) warped worldview that I see in a lot of prosecutors. Most that I talk to are as...hmmm...good(?) at laying out their thoughts as you.

For the record, I never planned to be a criminal defense attorney. I feel I was forced into it by fellow students like the one who expressed disdain for a particular appellate decision in a criminal law class one day. "I can't believe they let him off on that technicality!" she expressed one day, when we read a decision wherein the appellate court reversed because the "willful" element of a particular specific intent crime was clearly absent. There went my plan to leverage my technology background to make a decent living doing "technology law."

And it was another (very good) prosecutor (now a judge) who convinced me that he wished people like me would consider becoming criminal defense attorneys.

But I'm baffled by this post and, particularly, by the comment above mine, to which I'm primarily responding.

You write that someone who is guilty, but pleads not guilty, is behaving immorally. If I read your post correctly, this is because that person is not taking responsibility for their acts. But in your comment, you say that "if...a person is taking responsibility for her acts [you] should take that into consideration in making a plea offer."

HOW do you make a plea offer to someone who has entered some plea other than "not guilty"?

The only alternatives I'm aware of are "no contest," or "guilty," or perhaps "I demur." I maybe could see a demurrer resulting in an offer. But isn't it moot to offer a deal to someone who has just plead "guilty" or "no contest"?

 Rick Horowitz said on January 07, 2009  

Sorry. That should be "NOT as...hmmm...good(?)"... ;)

 Ken Lammers said on January 07, 2009  

Well, in Virginia there is no preliminary arraignment. At the first pre-trial hearing the judge is supposed to make sure the defendant knows her charges, find out what she's doing about an attorney, and perhaps address bond. Some judges automatically enter a not guilty plea at this time (without asking the defendant), but it has no legal effect. So, I am negotiating with defense attorneys whose clients have not pled. Even if my jurisdiction didn't work this way I wouldn't count an intial entry of not guilty against anyone; I'd consider that pro forma and the defendant in a morally nuetral position (as to the plea) prior to trial.

Theoretically, I would negotiate with the defense attorney, who is in contact with his client, in order to arrive at a point where we would agree on a lesser sentence because his client is accepting responsibility (mind you, I won't give away the barn - the sentence would still be proportionate, just lower in the guidelines range).

However, 90% of the lawyers don't contact me until the day of our first hearing (our local court has a plea date a month before the set trial date) and 90% of them have not been contacted by their client prior to that date. Therefore, the reality is that I prepare plea offers for my 8-10 felony cases that day and hand them to the defense attorneys as they come in. They already have built in a sentencing discount for an assumption of responsibility. Some take the offer. Some send their attorney back to me to complain about the harshness of the offered sentence. Some attorneys come back to me with facts or legal arguments they believe need to be considered. Sometimes the offer is rejected and we proceed to trial.

 Tom McKenna said on January 07, 2009  

Mark is off the mark about violation of mala prohibita crimes. Although these crimes are usually not intrinsical moral evils (though I would argue about marijuana being classed a mala prohibita), the moral implication arises when one deliberately violates such a law. Though the object of the law itself might not be of intrinsic moral concern, the decision to wilfully violate a just law enacted by legitimate authority is itself a moral failing.

Now this moral failing might be a very slight one... but then again, if you ignore such laws routinely you are teaching all those around you (children?) that obeying just laws is not more important than satisfying your personal whims in disobeying them.

And when a habit of casual disrespect for the law is winked at, or worse, elevated as some kind of "I did it my way" statement against "the Man," one wonders where the line will ultimately be drawn with respect to which laws must be obeyed.

 Mark Bennett said on January 07, 2009  

Well, I'll be damned. I've been spelling "mala prohibita" wrong for 13 years.

 Tom McKenna said on January 07, 2009  

That's OK... I'm a traditional Catholic, so I have some inside expertise!

 rhbrandon said on January 08, 2009  

"[T]he decision to wilfully violate a just law enacted by legitimate authority is itself a moral failing."

Well, that just means our nation was founded by a bunch of scofflaws. After all, the Quartering Act, the Stamp Act, etc. were certainly regarded in England as just laws enacted by legitimate authority.

Sometimes, you just have love prosecutors. They miss the forest for the trees and would charge you with trespass for pointing it out to them.

 Ken Lammers said on January 08, 2009  

Yep, gotta luv those prosecutors. We actually read history.

I long ago lost my childhood delusions that our founders were perfect people. Many of them violated the law in pursuit of their pecuniary interests rather than in opposition to taxation without representation (the moral claim against the British taxes).

See ALGIE MARTIN SIMONS, SOCIAL FORCES IN AMERICAN HISTORY 61–62 (1911): "Nine-tenths of their merchants were smugglers. One quarter of all the signers of the Declaration of Independence were bred to commerce, the command of ships, and the contraband trade. Hancock, Trumbull (Brother Jonathan), and Hamilton were all known to be cognizant of contraband transactions, and approved of them. Hancock was the prince of contraband traders, and, with John Adams as his counsel, was appointed for trial before the admiralty court of Boston, at the exact hour of the shedding of blood at Lexington, in a suit for $500,000 penalties alleged to have been incurred by him as a smuggler." (quoting David H. Wells, American Merchant Marine, in JOHN J. LAYLOR, CYCLOPAEDIA OF POLITICAL SCIENCE, POLITICAL ECONOMY, AND THE POLITICAL HISTORY OF THE UNITED STATES (1881))

 Tom McKenna said on January 08, 2009  

The question whether a law is just or not is not a subjective one. It would be mere ipse dixit for England to declare its laws just. There is reference to the higher law of Nature and of God.

Thus, the southern confederacy, so right about the right of a state to secede, was wrong about the supposed justness of its slavery laws. Those laws were unjust because they violated the Natural Law and the law of God.

I would argue that statutes permitting abortion are also inherently unjust laws, despite whatever claim the state (or anyone else)makes to the contrary: it violates Natural Law (and the U.S. Constitution, oddly)to deprive an innocent human of life under color of law.

So likewise, the American War for Independence was based upon the notion that the laws the founders complained of were unjust laws.

 Miscreant said on January 08, 2009  

Pardon. Before I wade in too deep here, for the record, I am a crim defense lawyer and I followed a link on Mr. Bennett's blog.

Mr. McKenna, I strongly disagree with your appeal to God and to natural law. Which God forbade slavery, for one? Certainly not the Judeo-Christian one. See Ephesians 6:5 for a New Testament view, Exodus 21:20 for an Old Testament view. "Natural law" forbids slavery? I turn a jaundiced eye to that viewpoint in light of Locke's ownership of Royal Africa Company stocks. I'll take "natural selection" over "natural law," and posit that many of society's legal wrongs exist mainly so the social organism of government can maintain control and power of the populace.

How is a person not morally justified by allowing society to fix his culpability and punishment rather than some prosecutor, whose primary function in life is to put people in prison or jail, a place of which the prosecutor knows only by anecdote? How is a person not morally justified putting the system on trial, when he feels the system put him in the untenable position to begin with?

@Ken: Did the smugglers happen, perchance, to be smuggling to avoid the oppressive taxation which at least partially led to Revolution?

 Ben said on January 08, 2009  

I think a point that is being missed here is that our system of adjudication and punishment assumes the existence and invocation of an adversarial system. Sure, you punched somebody and knocked out his tooth. You know it was wrong. But what is the just/moral *punishment* for that act? This cannot necessarily be determined by reference to any statutorily-prescribed punishments. The act could be charged/pled as anything from third degree assault to malicious wounding to attempted murder, etc. Further, legislatures know this; they pass criminal statutes with the knowledge that we do not have a regime of mandatory prosecution, and that many sets of facts that could be charged within a harsher statute will be pled or charged down, based on some combination of prosecutorial discretion and defense leverage. The law assume adversarial bargaining and strategizing.

Cases may be, and quite often are, initially charged to the full extent justified by the facts (or even beyond---speaking of situational immorality), and then pled down. It seems to me that, by adopting such a system, we as a society have implicitly agreed that the appropriate punishment for an act will be determined by the results of this process.

Possibly, in such a system, the just or fair punishment to which you might (arguably) be morally required to submit would best be determined by asking what is the average punishment society deems appropriate for a similar offense? But such an average emerges from the full workings of the adversarial system. Certainly, you should not be morally required to submit yourself voluntarily to a level punishment greater than what society imposes on others for the same crime?

 Ben said on January 08, 2009  

Oops, I think my post crossed in the ether with Miscreant's, which, in its third paragraph, sort of says what I meant in a much more pithy form!

 Ken Lammers said on January 08, 2009  

Miscreant,

The Sugar Act decreased the tax which had been in effect under the Molasses Act (which had never been protested). This reduction in taxes, meant to make smuggling rum unprofitable, was the first act which brought protest from the colonists. The Tea Act made the importation of tea by the British East India Company cheaper (never a good thing if you are a smuggler).

The Stamp Act, which caused the greatest uproar was about documents, not items of trade.

No, I don't think they were smuggling to avoid oppresive taxes or for altruistic reasons.

 Mark Bennett said on January 08, 2009  

In other words, rhbrandon, yes. We are a nation of immoral scofflaws, founded by immoral scofflaws.

 Ken Lammers said on January 08, 2009  

Well, I'm sure some of our founders were moral guys who weren't involved in smuggling or slavery. Maybe Franklin.

 Flash Gordon said on January 09, 2009  

It is not possible to plead not guilty when one is guilty because one is not guilty until the government lawyers have proved it beyond a reasonable doubt.

It is the right of every American to force the prosecution to prove guilt beyond a reasonable doubt, no matter what the particular circumstances might be.

It is never immoral to plead not guilty, but in some cases it might be stupid.

 Anonymous said on January 09, 2009  

OKAY!!! I DID IT!!! AAAAARGGGGHHH!!

 Edintally said on January 09, 2009  

(I've spent quite a few years now reading criminal defense blogs in preparation. As painful as it may be, I suppose I should begin to read proprietorial blogs as well to learn the nature of the beast)

Ken,

For me, you logic fails because it seems you believe the State is moral, therefore citizens should be moral when brought before it. If this is not what you infer then I still believe it fails because you are asking a group to be the personification of morality when the leaders of said group are not.

Also, as a member of the system I wonder if you are aware of how the parts affect the whole. In 1(a), you mention:

"It would not merely be a law which personifies a societal decision the defendant doesn't like (i.e. making marijuana illegal). It would have to be a statute which so damages the moral health of society that it is impossible to ignore (slavery, suffrage, etc.)."

It is unfortunate that you don't seem to recognize that 75% of the people, in poll after poll, agree to the use of medical MJ. Yet our Federal government refuses to legitimize it's use or the use of industrial hemp. Clearly, the Governments refusal to at least enter into the debate in an honest and meaningful way is immoral. How can the State hold me to a higher standard than it holds itself?

If "you" are personally immoral, it should have no bearing on my morality. But this is not that. The State is trying to hold individuals higher than it holds itself. In the absence of its own immorality, it has, in very real terms, broken the bonds that hold me as a citizen.

That you do not see, or recognize this condition does not make it any less so.

 Edintally said on January 09, 2009  

...prosecutor(?) blogs...

spell check 4tl

 Taullya said on September 02, 2010  

Okay, so I'm well over a year behind the curve here. I just read the blawg today and to be honest with every single one of you, I find it extremely fascinating to read all of your comments.

I agree that it is immoral for someone to claim "not guilty" for an immoral act they committed. I understand the intent of the blawg. I am not open to dissecting the laws, mostly because I am not a law school graduate nor have I ever studied law.

However, I work with inmates, people who are pre-trial and "presumed" innocent until proven other wise by the courts; then there are the convicted and sentenced inmates. I have a whole different view of the law and our justice system after having been working so closely and being able to study those who comtinue to committ immoral acts day in and day out.

Professionally, I believe that everyone has the right to due process. Personally, our system needs a serious "make-over". I won't go further into that, because I already know that if anyone decides to read this I'm going to get torn to shreds.

Anyway, I agree, if someone ADMITS to committing an immoral act they have the responsibility of responding "Guilty, your honor" during arraignment and through the rest of the long, drawn out court process. If they do not admit to committing an immoral act, then how are we to know if they are acting immorally to taking the "not guilty" cop out?

Thank you for taking the time to read a thought from an uneducated, law enforcement officer who has to deal with the immoral scourges of society day in and day out.