No solution at all

Let me ask you another question: of the following group, whom would you trust to protect your Constitutional rights? Judges, legislators, prosecutors, defense attorneys.

I’ll wait while you think about it.

So when you discuss ideas about reforming the criminal justice system and your ideas get traction and are picking up by national columnists, you should perhaps pay attention when they’re criticized by those who are best in a position to determine whether they might be effective or not.

You should. I say should because it doesn’t happen. There’s a large divide between legal practitioners and law professors and an even bigger chasm between practitioners and professors who have political clout. I don’t often write about law professors and their impact on the criminal justice system because I just don’t. But that doesn’t mean I don’t notice it. It doesn’t mean that most criminal defense attorneys don’t notice that we’re the red-headed stepchild; the distant cousin with leprosy who must be invited to the party, but seated as far as possible from the normal people. We see it. We ignore it because we’ve already got enough fights to fight; for you and for me. But sometimes it bears mention.

Judicial opinions don’t cite to my blog posts or that of Mark Bennett or Scott G or any of the dozen other criminal defense lawyers on the internet who write about the practice of law and the defense of your rights. No, they cite to Volokh and SCOTUSblog and the Instapundit, because apparently academia is better suited to understanding the actual problems of being “in the trenches” (which, to be sure, isn’t meant literally).

Why is that so? Is it because academia is so revered? Is it because it’s easier to hobnob with the elite and the powerful? Is it because, deep down, we may revere the principles of individual rights, but we hate those that trade in them? Is it because it is so inconceivable to use that there is value in the profession of criminal defense, that we can only deal with the idea of it?

“I have rights and they must be defended, except everyone who defends them is a murderous scumbag” is a very odd belief to hold.

The truth is, as I said before, that some ideas suggested for reform are intriguing and some are downright terrible. They’re not terrible because they’re suggested by someone whom I don’t agree with politically, or who called me a name. They’re terrible because they are, in fact, dangerous and unworkable.

For example, explain to me a workable system whereby the State would have to pay the costs of a winning defense and the defense the cost of a loser. I dare you. It can’t be done because it’s an idea that’s so incongruous with the nature of the system itself.

If the idea of “crashing the system” by taking every case to trial – or the differently stated ‘banning pleas’ – was workable in the least, don’t you think it would have been done before? It’s a terrible idea because it’s dangerous. Because not every criminal defendant can or should go to trial. Because it would be malpractice. Because it would be suicide.

Maybe it was Aaron Swarz, maybe it’s the NSA scandal, but people are starting to realize that the Government has too much power. There is overcriminalization and there is overcharging.

What is the solution? Immunity, but that’s been rejected by the Supreme Court. How else is one to check the power of the State? Who else is left, if not Congress or the Courts?

The people. It’s taken 7 years, but I think I’ve finally come to the conclusion that juries need to know punishment before verdict and juries have to be told they have the power to nullify.

But it won’t matter a damn because the people to whom we make this temporary grant of power are also all too quick to exercise it to condemn “the other”.

Because the problem always has been “the other“. The overcriminalization encroaches on “my rights”, I’m not talking about “banal” crimes like murder and rape.

When will you realize that the rights of a murderer are the same as your rights and my rights. The Constitution makes no distinction. An overreaching, high-on-power prosecutorial system won’t suddenly take a break from beating up on the powerless and the helpless just because you happen to walk in their path; you with your “technical violation” and “minor white collar transgression”.

So you may trumpet these reforms and you may get on your soapbox, but they’ll never work for everyone; they will never address the real problems with the system that you’re too high up to see. Not until there’s a seat at the table for those that have first hand knowledge of the problems with this justice system.

Otherwise all you’re doing is reinforcing the notion that there’s one system for “us” and one system for “them”.

20 thoughts on “No solution at all

  1. Pingback: Reforming prosecutions | a public defender

  2. shglaw

    It so nice and calm around here. Where are all the Instyfans that I’ve gotten to know and enjoy so much in the last day? Want me to send them by?

    1. Gideon Post author

      He hasn’t linked to this post yet, just the one from January. They’ll come. Or maybe it’s too long for them to read?

  3. Leo M. Mulvihill, Jr.

    I didn’t know or care about Glenn Reynolds before this whole kerfuffle.

    Now all I know about him is that he’s a whiny asshole crybaby with huwrty feewings, and his Instaboobs are just as bad.

    Are people really this stupid?

  4. Tamar Birckhead

    Gentlemen — I’m clearly missing something (sorry — I don’t read Intrapundit or Volokh), but I think at least part of your anger is misplaced. As you know, law professors don’t have the ear of the decision-makers merely because they have a fancy title, but because they take the time (perhaps in part the result of fear of losing their livelihoods) to write and publish and SPELL OUT their ideas, making it possible for courts and law makers to cite them. Practitioners are on the front lines doing their jobs and understandably can’t be bothered with theory and “proposals for reform” because their clients are waiting. But in recent years with your totally cool, engaged, smart blogs, you — and others — are part of the conversation. Blog posts by lawyers will eventually be cited in court opinions (and maybe they already have been — I’ll have my research assistant look into it ;-)), and even now, they are the inspiration for people like me to spend a month (or 2 or 6) writing a 20K work “article” that may get some traction with the powers that be. Likewise, there are plenty of practitioners who do take the time to put their ideas into “article form,” which is easier than ever these days, as law journals prefer shorter pieces with fewer footnotes; publishing is also accessible to all through venues like Bepress, etc., that allow you to send your draft to 100 journals with the click of your mouse.

    I know you already know all this, and there’s nothing wrong with just letting off steam (and who am I to stop you? It’s your blog for chrissake!), but don’t sell yourselves short. Your ideas matter, they are noticed, and they have an impact.

    Class dismissed.

    1. Gideon Post author

      The complain is with “professors” writing articles on subjects they have no clue – much less authority – about and then those ill-informed, theoretical suggestions being taken as a cure-all when they have no bearing in reality.

      1. Tamar Birckhead

        Yeah — I get it. That happens. But there are also those of us in the academy with experience, some of whom are actually still practicing, who write articles that are completely grounded in reality. So stop reading the know-it-alls who actually know nothing and/or write 10K words yourself on the concept of advising juries of the likely punishment before deliberations and the power to nullify (as you mention above) and call it a “law review article.” Then get it published, promote it, and maybe it will get traction. These are good ideas and aside from Paul Butler no one has written much about either.

        1. shg

          I think you’ve jumped into the middle of something without context and are on a tangent. Granted, the context is provided by Gid in the links, and if you don’t click on the links, you could easily think this is a more generic post than it is, but it’s not about lawprofs who have practice experience and are staying within the confines of their scholarship, but the ones who stray far afield and, by virtue of little more than their title, get traction on terribly bad ideas.

          1. Tamar Birckhead

            I clicked on the links and went to the pages, Scott. I got as much context as I could from the post. Just because George Will and a legislative committee have noticed a thin, poorly-developed article from Instapundit doesn’t mean that it’s actually going anywhere. Change, as you know, is a long haul. Yes, there are plenty of academics who write outside their fields, make empty, worthless proposals, and then are noticed (most of them are white and male, by the way), but rarely do they have an actual impact on the profession. I guess it depends on what you mean by “traction” and whether you care (which you and Gid both seem to) about attention that has little value but may be good for the ego.

        2. Gideon Post author

          Really? Don’t pretend like it’s not a cutthroat industry where all that matters is where you teach and who you know. It’s not just “law reviews”, but legislatures, task forces, committees. Defense lawyers are routinely denied a seat at the table. We’re treated like third-class citizens, just as our clients are.

  5. nidefatt

    (1) No one thinks of people accused of crimes as an unpopular minority- even though they are.
    (2) No one wants to think of themselves as ever possibly being a member of that minority.
    (3) No one wants to think that they could, at any time, be trapped in a cell.
    (4) Professors never tell them that, because they deal in “original understandings,” thus what rights were like long ago in a world utterly unlike our own. This prevents anyone from having to concern themselves with reality.
    (5) Far too many judges were civil practitioners or academics or appellate lawyers prior to getting on the bench.
    (6) Most judges thus think of the “criminal justice system” the same way most people think about it- a bunch of criminals putting off their punishment.
    (7) Those judges adore showing how the Constitution really has nothing to do with the unethical practices of the prosecution and police of today’s world- as bad as they are, they are not constitutional!

    Way I see it, law schools are largely to blame I went to Boston University and was the last class to have a course on “constitutional law.” Students complained that it seemed all the opinions are illogical and questioned why they should care. The course never included cases on criminal procedure, which was not required. I don’t know why we bother having an oath to join our various bars that states we will uphold and defend the Constitution, when next to none of the admitted know a damn thing about the document.

    1. Tamar Birckhead

      It’s so easy to blame law schools. Did you take a criminal clinic at BU? How about one of the courses in criminal procedure? If you were upset by the curriculum for the con law class, did you share that with the powers that be?

      I agree with your initial premises listed above (1-7) about the problems of the criminal justice system, but to put the burden in the lap of your legal education is lame. You went to law school, you chose BU, you paid for it, and you graduated. Plenty of people get the same opportunity and learn a whole lot about the practice of criminal defense and constitutional criminal procedure. Take ownership of your role before lashing out at the academy that you selected to be a part of.

      1. nidefatt

        I think you missed my point. Yes, I took all those classes, I’m a public defender. My point is that essentially all bars require a person to get a degree from an accredited law school. A lot of people question the wisdom of this. If there’s one thing law schools could do, it would be to instill a respect for our constitution and the limits that it places on government power. Instead, most law schools require classes in contracts and torts. BU no longer requires a student to learn anything about the constitution. These grads will then go pass the bar, and take an oath to uphold a document that they do not know a thing about. If they knew, if they were required to learn about the Fourth Amendment, perhaps we would find ourselves facing fewer judges who are only too happy to turn a blind eye to violations of constitutional protections. The legal community, as a whole, is extremely, and tragically, ignorant of what the Bill of Rights consists of. Or why they should care.

  6. Tamar Birckhead

    Wait a minute. What about Bob Listenbee, Philadelphia PD for nearly 30 years who was just named Chief of OJJDP by Obama — a hugely important position for impacting policy, programs, and culture for kids in the juvenile justice system? What about the folks at NACDL? They have clout and are regularly included on these bodies? You have to put yourself out there, volunteer for these things, and try to make waves if that’s what you want. The folks who do so can get their voices heard over the din but you have to take the first steps.

    I don’t disagree that there’s an inside track (aren’t all SCOTUS judges grads of either Yale or Harvard?), but that doesn’t mean that the rest of us are categorically excluded from the table.

    Join the organizations that do have seats, volunteer to serve on the committees, and put yourself out there (maybe start by dropping the pseudonym). You can’t say you’ve been “denied” a spot at the table if you haven’t asked for one.


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