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Bizarre comment. Is the suggestion that defense attorneys should make their own ad-hoc judgements about who they think is or isn't innocent and put more or less effort into their defense accordingly?
Yes, actually that’s pretty much what I’m suggesting. Putting up a spirited defense to help a guilty person escape justice is a bad thing. I am not accusing all public defenders of intentionally committing acts which they believe to be immoral; I’m saying that the moral hazard created by forcing them to do this is a terrible thing. I cannot understand what value is created for society when a defense attorney concocts elaborate arguments and exploits loopholes in order to stop somebody from being punished for something that person did.
I actually agree with this, though not with most of your crimestop opinions, but I have a gentler solution to the moral damage done by the public defender system:
Replace DA offices and PD offices with "Public Criminal Law" offices. Lawyers are assigned essentially at random as prosecutors or defenders for any given case.
Right now, becoming a PD is joining the Washington Generals, you're going to lose, all the time, you're at best there to keep the government honest, while the rest of the courthouse has a slight tendency to view you as a speedbump and an obstacle. It attracts only certain temperaments. Becoming a DA conditions you to view the criminals as slime, grist to the mill, just a case number to get through.
Make them switch sides, constantly, and you'll get higher quality defense with a better relationship to the cops and judges. You'll get DAs who are less high handed, because they might find themselves on the other side next week.
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Because there's no way to let a defense attorney do it only for innocent people and not for guilty people, and there's substantial value in providing protections to the innocent.
There's also another problem: If the attorney is not supposed to put up a defense for a guilty person, that means that the defense attorney needs to decide guilt, making him essentially a judge. There are good reasons why judges and defense attorneys aren't the same thing.
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I'm sorry, but you sound like a young man who has just discovered that the justice system is not perfect, but you have simple and obvious solutions that no one in the history of American jurisprudence has thought of before. If only they would listen to your common sense solutions!
There are several reasons defense attorneys put up a spirited defense:
Contrary to your belief, no, they don't always "know" their clients are guilty. They might believe it, they might strongly suspect it, but sometimes innocence is actually a possibility, even if an unlikely one. And our legal system is built on the premise that "reasonable doubt" is enough to acquit, and it's better to let ten guilty men go free than to imprison one innocent man. You might disagree with these premises, but then you have to convince everyone else; it's not something no one has actually put thought into.
If they do know for a fact that their client is guilty, they are actually not allowed to make arguments contrary to fact. (They can't claim the defendant wasn't there if they know he was.) In that case, they still can require the prosecution to prove guilt beyond a reasonable doubt. That is because the state has enormous power, and requiring the state to prove you are guilty, not just "know" it because "it's obvious," is one of the few things preventing people from being casually railroaded by malicious cops and prosecutors (which still happens even with all these safeguards).
I strongly suspect the probability of that happening not bothering you is because you know who would be railroaded more often than not, and you think that would be a good thing because you have openly stated you don't really care about the procedural ethics or truth valence of any particular charge against
blackcriminals as long as they get got for something. But most people don't share your values or your eagerness to unleash the full power of a police state, with your confidence that that power will mostly fall on your despised outgroup.Convincing people is precisely what I am attempting to do! I’m well aware that you don’t think I’m doing a very good job of that. I’m well aware that my position is very much a minority one, both on the Motte and in American society at large.
And it’s not as though I haven’t acknowledged counterarguments throughout this discussion and others. I just ultimately believe, after thinking it through and examining the arguments, that my position is correct. It was not always my position! Again, as you know, I used to be extremely pro-civil-rights! Justice William Brennan was a major hero of mine. When I took a constitutional law class in college, I was consistently the one arguing for the most expansive protections for defendants possible! I’ve been persuaded away from that position over time, but it’s not like I don’t understand the arguments for it.
My outgroup here is “individuals with long criminal rap-sheets, including multiple felonies.” These are not normal upstanding middle-class people who get roped up unjustly and at random. Do you genuinely think, based on anything I’ve said, that I’d be happy to see some respectable black guy with a wife and a mortgage and a full-time job get snatched up by police and railroaded for a crime some white junkie committed? No, I wouldn’t, and that doesn’t happen. The people who would get expedited through the justice system under my proposed regime would be people who have conclusively demonstrated their inability to participate in a non-criminal manner in society.
Fair enough. I will tell you one of the reasons you fail to convince me: because even though I am not a member of the black criminal underclass that you want to put a boot on, I have seen what people like you and your compatriots have said they would do to me and mine just for being your political opponents. In your hypothetical police state that doesn't have to care about civil rights or reasonable doubt, I have no illusions that it would only be junkies getting the boot. No, don't tell me that as a respectable law-abiding white guy I would be safe; I don't believe you.
Happy? No, but I think if that were the price for putting more junkies away, you would be okay with it.
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Because, obviously, the very act of the attorney defending them in front of the judge and/or jury is the process by which we arrive at a conclusion of whether that person did in fact do it in the first place. We can be more confident in knowing that someone did do something precisely because someone has done their very best to defend them, and if the defense attorney can't furnish any convincing arguments there probably aren't any. How are we supposed to determine what arguments will be 'elaborate' or 'loopholes' and which will not be in advance of the arguments actually being made to someone?
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