The “Decency Defender”
Much is being written (see, e.g., here) about the “progressive prosecutor.” A progressive prosecutor, to sum things up, is an ideological defense lawyer elected in a one-party jurisdiction — virtually always Democratic — and financed directly or indirectly by anti-American billionaire George Soros. He typically promises public safety and concern for crime victims, but in fact couldn’t care less about either. His aim is to advance the interests of criminals, either by not prosecuting them at all, or prosecuting them on scandalously reduced charges, and then recommending some sentence like anger management (if any sentence at all).
All the talk about progressive prosecutors got me to thinking. If we can “re-imagine” prosecutors, can we re-imagine defense counsel? We often hear that the re-imagined prosecutor should consider himself in a broader role — i.e., as a “minister of justice.” Would it be possible for defense attorneys to re-imagine themselves in a role beyond merely getting a walk for the client on this particular charge, and instead being an advocate for his client’s embracing a better life?
To clear away the underbrush, I understand that this sort of re-conceptualizing the role of defense counsel would require a revision of the current walk-or-bust ethos of defense lawyering, in which counsel is expected to work myopically to achieve, as best he can, a here-and-now evasion of accountability for the client. It would require building on the Supreme Court’s insight in Georgia v. McCollum that, while society is served by accommodating the attorney’s loyalty to the client, that accommodation is not unlimited and can be subordinated to more urgent societal interests — in that case, cleansing jury selection of racial bias.
If we can envision “progressive prosecutors,” can we also envision “decency defenders” — attorneys who would be not merely counsel but counselor, and would understand that the client’s (and society’s) long term interest might lie in something more sober and less expedient than just beating today’s rap?
If we can, what would a decency defender do that’s different from what defense counsel do today? Three things come to mind: A change in attitude toward truthfulness, and a change in attitude toward responsibility, and a change in attitude toward empathy and the recognition that your fellow man has the same feelings you do.
A change in attitude that places greater value on truth telling would be a big step forward, both in the honesty of the system and its efficiency. Instead of encouraging guilty clients to plead not guilty as the first “move” in a “game,” a decency defender would tell the client: “If you’re guilty you should say so, and if your’re not you should say that.” It doesn’t require a genius to figure out that a system that more consistently values the truth will more often achieve it. And there’s this too: We would gradually erase the corrosive and terribly cynical belief that the criminal justice process is just so much game playing when — guess what! — the game playing gets cut out. And we would avoid the situation we recently saw in the Michael Flynn case, where Flynn first pleaded guilty, and then did so again, only to recant on a third occasion and have his lawyer say he only did it because the prosecution threatened his son.
Wouldn’t our citizens, regardless of the various opinions they may have about Flynn, have been better served if Flynn had said from the outset, “Your Honor, the prosecutor is presenting you with what purports to be a plea agreement, but I can’t go forward with it. I’m not entering a plea because in fact I’m not guilty. I only even contemplated a bargain because they threatened my kid. The Constitution gives me the right to a trial to clear my name, and that’s what I want.”
Truth clears the air in a way compromises with the truth never will.
A decency defender would also take a different attitude toward responsibility. If his client harmed someone else — say, be stealing from them or defrauding them — the lawyer would encourage the client to admit this frankly, both to the court and the victim. He would then help the defendant arrange restitution — not, as is done now, as an artifact to trot out to the judge at sentencing in hope of skating by with a leniency, but because (again, try not to be shocked) when you wrongly appropriate what belongs to another person, you should pay it back.
And there’s this, too: We hear that rehabilitation is, at present, an undervalued goal of the system. I happen to agree with that. A decency defender would take this to heart — not just as a slogan, but as a central part of what a wholesome relationship to his client should aspire to be. He would understand what is now so often missed (or intentionally buried) (and is one of the reasons genuine rehabilitation is so infrequent) — that authentic rehabilitation cannot be achieved, indeed it cannot even begin, until the client admits he did something wrong and tries to make up for it.
How can we expect a person who has committed a crime to start improving his life when we are unwilling to require of him what any serious parent would require of his fifth-grader? And wouldn’t it be refreshing, as well as wholesome, if his lawyer helped him come to that realization instead of acting every step of the way as an impediment?
This leads to the third change that a decency defender would bring to the system, to wit, an acknowledged and encouraged role as a counselor to the client and not merely a hired gun to beat the rap. From my experience as a prosecutor, I came to the pretty firm conclusion that the most common reason for criminality is that the criminal simply doesn’t get it — or doesn’t get it nearly as much as the average person — that his victim has the same feelings he does. It strikes me that his lawyer is as good a position as anyone in the system, and perhaps better, to try to change this. The candor and baring of unhappy truths that can go on in a defense lawyer’s office can be put to a higher use than merely conjuring up a plan for a trickster acquittal. It can be the beginning of a relationship that helps the client see that his fellow creatures are just like he is.
If that central truth takes hold in the client’s heart, then, most of the time, the outcome of this one case will pale in comparison to the awakening a decency defender will have helped to achieve. Until it takes hold, all the defenders in the world, decent or not, won’t be enough to give the client what he — and the people who will have to deal with him in future years — most urgently need.
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I very much like your interesting effort here, Bill, to think about the role and work of defense attorneys, and I also like the “decency defenders” framing. In this context, I would be particularly interested in your thoughts on what a “decency defender” should do when he has a basis to believe drug use and/or mental health and/or poverty played a significant role in a client’s wrong-doing. Do you think a “decency defender” should resist efforts to jail the client — which would seem likely to aggravate these problems — while pursuing ways to get the client any available treatment, services and resources to address the root causes that the “decency defender” has identified?
Of course, for many (though not all) white-collar offenders like Michael Flynn and Roger Stone and Steve Bannon and Paul Manafort and Michael Cohen, a “decency defender” would not have a good-faith basis to believe drug use and/or mental health and/or poverty played any significant role in his client’s wrong-doing. But statistics suggests that a considerable number of other persons run through our criminal justice systems might well have, in the eyes of a decent “decency defender,” problems related to drug use and/or mental health and/or poverty that would call for critical public resources in order “give the client what he — and the people who will have to deal with him in future years — most urgently need.”
Put another way, I actually think most defense lawyers already are “decency defenders,” but if you focus only on the ones generally charging $20K/day for their services, you might not see it.
A provocative comment, as usual, and I’ll try to get to it shortly!
“Nobody’s bad; everybody’s just sick.”
Boy, did I hear that one a zillion times! It’s basically the anthem of present day defense work. There’s always some reason Mr. Nicey belted Grandma with a tire iron to get her purse OTHER THAN greed, or that his “work” with Grandma is less boring, and a quicker way to get dough, than working at Target or Walmart or McDonald’s or what have you. Working a normal job is for chumps. Just like staying off drugs is for chumps.
Well, count me in the chump fan club. Yes, working your way up takes patience and discipline, but millions of people of all races and circumstances have done it. Indeed, it’s the story of America.
There will be cases, sure, in which drugs or mental health issues contribute in some way to the criminal’s behavior, and the decency defender has every right (and obligation) to provide the court with evidence to that effect. But is has to be real evidence, not just the ever-on-call, case-after-case shrink who will routinely testify that it was everyone and everything else’s fault except the defendant’s.
I do not agree that poverty causes crime. Our country grew much richer in the 30 years from 1960 to 1990, yet the number of crimes committed exploded over those three decades. By contrast, from 2008 through 2010, when the Great Recession hit and real incomes shrank noticeably, crime declined, as it had for the prior 15 years or so. It seems to me that it’s truer to say that crime causes poverty than to say that poverty causes crime. It’s not whether you grew up poor; it’s whether, rich or poor, you grew up with two parents who taught you empathy, discipline, and obedience to rules whether you liked them or not. If so, you’re chances of going to jail are extremely low. If not, then it’s not that you’re going to need help; it’s that the people who have the misfortune to run across your path when you feel like getting some extra spending money who’re going to need it.
And one final thought. Punishment and rehab are not mutually exclusive, not at all. You should be punished for intentionally breaking the law, both because that is just and because that’s a foundational lesson you need. If mental health or drug problems actually were part of the cause, then sure, you should get help while doing your time.
Bill, you have often cited data showing high recidivism rates for persons released from prison. Those data always strike me as suggesting prisons and jails generally do a very poor job of helping people become productive citizens, particularly people who struggle with drug use and/or mental health and/or poverty. (Importantly, I am not asserting that povery “causes” crime — I am saying that a “decency” defense attorney who reasonably thinks economic struggles contributed to wrong-doing might rightly worry that amy prison time and a criminal record will decrease the chances a client becomes a productive citizen.)
I sense that a lot of defense attorney’s reasonably define “decency” in terms of prioritizing helping people become productive citizens rather than prioritizing punishing them. This instinct seems justifiably strong for lots of “regulatory” offenses — like drug crimes or gun possession crimes — where the “decency” defender knows there are millions of people engaging in these offenses who are not subject to enforcement and are able to otherwise lead productive lives. (The 10,000+ marijuana weekly arrests surely fit in this category, since data suggest more than 10,000,000 people are using marijuana illegally each week.)
Your comments here suggest that you, perhaps like many in recent generations, will always be eager to prioritize punishment over any other goals. Indeed, I see the persistent era of mass incarceration as reflecting an eagerness to priortize punishment —and particularly putting people in cages — over a range of other concerns. But the progressive prosecutor movement reveals that a significant segment of our society is ready to define “decency” in a different way and eager to to see prosecutors prioritize goals other then punishment. Indeed, I suspect that public defenders would reasonably assert that seeing a lot more “decency” from prosecutors is what the progressive prosecutor movement is fundamentally about.
I just saw this discussion in the new DOJ report from the President’s Commission on Law and the Administration of Justice (p. 36):
“A look at three separate studies found that about 44 percent of jail inmates and 37 percent of prisoners were previously told they had a mental health disorder. Sixty-one percent of sentenced jail inmates and 54 percent of state prisoners incarcerated for violent offenses met the criteria for drug dependence or abuse. Approximately 15 percent of those incarcerated had been homeless in the past year. At the time of booking, the number of people in San Diego who reported being homeless in the last 30 days increased from 22 percent in 2014 to 39 percent in 2018; the number who reported being homeless at some point in the past increased from 60 percent in 2014 to 66
percent in 2018.”
These data strongly support my notion that defense attorneys, and particularly public defender, would often encounter clients who they would have strong reason to believe drug use and/or mental health and/or poverty played a significant role in wrong-doing.
Doug, you know that I’m a simple-minded man, and I have long labored under the impression that the main ingredient in stealing is greed rather than sickness. Do you disagree? What makes me wonder is that I see you talk about crime often, but almost never see you talk about greed. Is greed irrelevant?
And as to sickness, and drug dependency in particular: Who is it that forced/encouraged the criminal to take drugs to begin with? Was it more likely those, like me, who emphasize the individual and social dangers of drug use and therefore want to take strong measures to discourage it, or those who want to send the signal that we’ve gone overboard on the dangers of drugs by legalizing them?
And while we’re on worthwhile questions: It used to be said that the criminal owes a debt to society. Much of what you and other “reformers” write leads me to think you believe the opposite, i.e., that society owes a debt to the criminal. Which of those propositions is closer to the truth, in your view?
You also say that “… prisons and jails generally do a very poor job of helping people become productive citizens, particularly people who struggle with drug use and/or mental health and/or poverty.” I would ask that you consider a different perspective — that prisons and jails cannot make a person a productive citizen. They can to a degree afford opportunities for improvement (and should do so), but, overwhelmingly, whether an inmate becomes a productive citizen is UP TO HIM, his will, his conscience, his determination — not up to his surroundings. Where there’s a will, there’s a way. Where there’s no will, we can send him to Princeton or Harvard or Stanford (just to choose three places out of the air), but nothing good will come of it.
I also wonder about your emphasis on mental health problems. How is it that mental health problems never seem to make the “patient” eager to join Mother Teresa helping the poor in India and instead virtually always make him want to break into your house while you’re at work and steal your TV and sound system and your wife’s jewelry? This reminds me of the oft-heard excuse in child rape cases that the defendant only did it because he was drunk. Now I’ve been tipsy a time or two over the years, but oddly enough it never made me think a six year-old was sexy. Indeed, it leads me to think that all of this going on about mental health is nothing more than a ruse for the real problem, that being garden variety criminality.
Lastly, as I noted before, and as is now almost uniformly accepted in penology, even by liberals, we can have punishment and rehabilitation at the same time. Indeed, from what I’ve seen, the criminal is far more likely to go to therapy and far more likely to reliably attend vocational training classes while he’s in the structured environment of a prison than when he’s out doing his own thing on the outside.
Bottom line: It’s up to the criminal, as it’s up to the rest of us, to take responsibility for his own life and decisions. Any alternative to that would require a government bigger and more powerful than either of us would want. And it would have one other flaw as well: It wouldn’t work.