The sine qua non of legitimacy

What is more important? A system that protects the rights of the individuals subjected to it, but that is fundamentally unfair in the treatment of those individuals? Or a system that is equally concerned with rights and fairness? While the Right To Counsel is a wonderful thing, has it been co-opted as a proxy for fairness in a system and has it been abused by courts to move as far away from the F word as possible? Have counsel truly been subsumed into a subset of the system – a cog in the machinery – so that the extent of our influence diminishes day by day?

Yes, says Alexandra Natapoff, LawProf and author of the Snitching Blog, in this fantastic new paper titled ‘Gideon Skepticism’. I’d really recommend reading the entire thing. She argues persuasively that Gideon, while great for the system, was terrible for criminal defendants, because it permitted courts to get away with all sorts of unfair outcomes because the defendant was represented by an attorney.

There is an assumption that as long as a defendant was represented by counsel, who advised him on the best course of action, all other flaws in the system are waived. As the “right through which all other rights of the accused are protected”, Penson v. Ohio, the Right to Counsel is being used as the one (sole?) indicator of the fairness of a conviction.

When I’m asked why I do what I do, my response is multi-fold. It isn’t only about our individual rights and protecting the innocent, but also about the fundamental fairness of a system as large as the criminal justice system. As you may well know by now, over 97% of convictions are obtained via plea agreements. And quite possibly well over 90% of criminal defendants are guilty of something (not an accurate figure; don’t quote me).

But no two circumstances are the same: each person is different; each case is different and each outcome should be tailored to its specific causal circumstances.

Having set the bar so low for competent representation, and making the remedy also dependent on the likelihood of a different outcome, courts have effectively rendered it impossible for any one individual to rectify an unfair situation (there are exceptions, of course, but even those come at a cost).

And the clearinghouse role assigned to defense counsel is unfair and improper. As I routinely tell clients and readers of this blog, the system is far bigger than I am and I’m able to exercise only limited control over what’s in front of me. Try as I might, I’m going to be unable to ever single-handedly bring change to the suggestive show-up procedure, or answer the question of why only one side in a fight gets arrested, or why the vast majority of clients are minorities.

We don’t decide what crimes to charge; we don’t decide what offers to make and we don’t decide how harshly to punish crimes. We take individual that comes before us and try to make the most of the tiny amount of wiggle room we’re given and yet then are trumpeted as a sign that all is well in a quite sickly system.

But in reality it is not well. In reality there is unfairness everywhere one looks. There are harsh penalties for people who don’t deserve them; lack of treatment options for people who need them; laws that promote a wanton disregard for individual rights (see the exclusionary rule, harmless error, etc.); prosecutors and juries that believe in the presumption of guilt; judges that punish the exercise of those rights and a system that is built on a foundation of contempt and disdain for “the other“; and yes, defense attorneys who are more interested in protecting their own ego.

I suppose the analogy to Sisyphus is accurate after all.

Leave a Reply