Why do lawyers defend criminals?


It does not follow, just because a defense attorney represents a person that has committed terrible crimes, that the attorney wants everybody to be allowed to do the same thing. At first blush, it is easy to understand how someone might make that mistake. Careful thought, however, will make the answer clear. Read more: Matt Howell, Former federal prosecutor; criminal defense attorney; civil litigator. June 11, 2019. www.quora.com/Why-do-good-lawyers-support-defend-criminals.

There are two great man-made forces that, if left unchecked, would make life miserable. Indeed, throughout history, each of them has done just that on many occasions. The first of these two forces is anarchy/criminality. If criminals are allowed to do what they want, none of us would ever feel secure. We would spend all our time making sure we would not be suddenly attacked and at we would be prepared in case we were. Additionally, none of us would work to generate food, clothing, housing, medicines, or any other goods that are necessary or beneficial for life because we would know that as soon as we developed some good thing, another would be able to come and steal it from us. It is to prevent this tragedy that we, as a society, have created a government with power to prevent these antisocial actions by others. Prosecutors and police are the agents of the government with the assignment to keep criminality in check. Without them, the government could not fill this important role.

The second great negative force is government itself. If left unchecked, government will find its way in to every nook and cranny of our lives. Read Orwell's 1984 for a chilling look at what life would be like with a government that is not subject to limitations and control. Unlike criminality, the government cannot be expected to be kept in check by government agents. They have every incentive to gather power to themselves.

Instead, the role of keeping the government in check is given to two groups. The first is the voters. Although they sometimes act to reign in the government and its powers, the voters are, as often as not, part of the problem. Individuals tend to vote in accordance with the role they usually fill or most fear they are likely to fill, which for most people is that of law-abiding citizen that may be the victim of some crime. Most voters cannot imagine themselves being accused of, let alone charged with, a crime. Thus, they tend to vote for the law-and-order candidate.

As one of my law professors told us, when the Nixon administration was first elected, they were focussed very much on law and order, never imagining that they may eventually be on the other end of that stick. By the time they were leaving office, they were probably more concerned about prison reform. You never know when you may depend desperately on those rights.

Because of this problem, the real role of keeping the government under control is left to defense attorneys. They are the ones that have the power and incentive to argue to presumably neutral judges the principles that are included in the Constitution and Bill of Rights that all of us depend for a good life but on which most of us never need to call.

It is the defense attorney who, in pursuit of justice for his client, ensures that the police have no incentive to break down your door without probable cause and a warrant because they know a judge will not consider the evidence they obtain in that circumstance. It is because of defense attorneys that you can feel secure in protesting government policies, communicating with your radical-yet-lovable uncle, or buying a gun for target practice, hunting, or self-defense.

Many candidates for office claim to defend the Constitution. But very few of them are really focussed on defending the Constitution. They are really seeking political power, which is what the Constitution is designed to limit. While it is true that many of them are disputing some particular policy that their opponent is espousing, they raise that argument only because they think it will work for them. It is only the defense attorneys that are constantly trying to limit government power and enhance individual rights.

That is why even the most honest, upright citizens should be grateful that defense attorneys work hard to vindicate the individual rights of people who may be the dregs of society.

Read more: Matt Howell, Former federal prosecutor; criminal defense attorney; civil litigator. June 11, 2019. www.quora.com/Why-do-good-lawyers-support-defend-criminals.


I'm an attorney. I've done criminal defense work as a volunteer in a public defender's office. And I wrestled with this question and lost. I simply was not able to come up with a good answer. Read more: Mike Stark, Rensselaer Polytechnic Institute (September 2, 2019). Why do good lawyers support/defend criminals? www.quora.com/Why-do-good-lawyers-support-defend-criminals.

As a law student, and even before I went to law school, I held romantic thoughts about criminal defense of the indigent. It was pretty easy to get there... How many news stories have you read about wrongful convictions? Or about poor teenagers doing hard time for non-violent drug offenses? Or about the disparity in enforcement and sentencing between different communities and the reactionary response of politicians to the '90's crime-wave?

At the same time I was motivated to defend the downtrodden, I was pretty self-righteous about the powerful lawyers who got rich defending Wall Street bankers and corporate polluters.

It seemed that if you stole millions, you got months if you had the right lawyer. But god help you if you stole a bicycle and had to rely on a public defender...

So yeah, I went to law school and decided to spend some time volunteering at a local public defenders office. Soon enough, I saw things differently.

See, the thing about public defenders is that they do not get to choose their clients. You don't get to limit your case work to the hapless teenager facing loss of college loan eligibility because she was caught with a blunt. Cases you want to defend... say the girlfriend of the dealer who had no idea there was a kilo in the trunk... well... they aren't that common.

Instead what most public defenders get are the 5th time drunk drivers, and the wife-beaters, the chronically addicted, and the recidivist petty thieves. Many of these folks have IQs way below average, and everyone knows it'll be a matter of time before they run the gauntlet again. There's just not a lot of hope for them, and although their public defenders will do what they can to avoid any true trainwrecks of justice, these marginal members of society are processed through the system like sausage. Nobody feels good about this kind of environment, but it's the way our system dispenses justice, and by and large, the reason it's done this way is that nobody has found a better way to do it. You will always have petty criminals in any society and they have to be dealt with efficiently but with fairness. And for that, a defense attorney is necessary.

But there's another side to work as a public defender... It involves violent criminals and sexual predators.

I'll paint two pictures for you that I think bring a stark sense of reality to the subject question of this Quora. I was involved in both of these cases. The second case was my last. I'd have rather defended a Wall Street Banker than work another day doing the kind of work I was assigned as a volunteer.

The first case involved a man accused of forcible rape against a teen girl. He had already been arrested, charged and plead guilty to a lesser offense perpetrated against this girl about a year earlier. The girl at first said she had been assaulted by her landlord. He plead down to a minor offense, and received insignificant punishment. Soon after sentencing in that case, the girl's story changed: it wasn't assault; instead he had held her down and forcibly raped her. On the girl's statement, the defendant was re-arrested and re-charged.

Read more: Mike Stark, Rensselaer Polytechnic Institute (September 2, 2019). Why do good lawyers support/defend criminals? www.quora.com/Why-do-good-lawyers-support-defend-criminals.

That raises significant double-jeopardy issues. In fact, one of the reasons double jeopardy is Constitutionally prohibited has to do with exactly this: an accused is forced through trial, gets a result, and then the state - or the victim - isn't happy with the result. Well... they aren't allowed to take a second bite at the apple. The Constitution prohibits them from bringing new facts and recharge for a crime previously adjudicated.

Aside from the double jeopardy issue, I had other reasons to be concerned.

The girl's mother had been feuding with the accused over who was responsible for damages done to the property she rented from him... The girl didn't bring the second round of charges of her own volition - she came forward because her mother ordered her to... The defendant claimed he was an immigrant who faced revocation of his status if he had been found guilty of the original charges at the first trial, so he reluctantly took a plea deal to keep his family together...

After looking at the whole case, I had no idea what actually happened on the day in question. I had plenty of doubt about the victim's story and her mother's role in pursuing charges, but I couldn't rule out the defendant's guilt either. As for me, I did the legal research regarding double jeopardy and presented it to the attorney assigned to the case. The case hadn't run its course when I stopped volunteering, so I cannot tell you how it was resolved. But I can tell you this: That was the first time I questioned whether or not I was working for justice. Was I was using the law to provide an undeserved "get out of jail free card" to a sexual predator, or was I protecting the defendant's rights and guarding against an unjust conviction? To me, the former would be the polar opposite of justice. Alas, without knowing what actually happened, all I could do was hope that I wasn't protecting a predator.

At least in the that case, there was a fair dose of ambiguity. At a very minimum, I could feel good about providing the defense because the guy was vulnerable and I had a hunch that the mom was out for vengeance.

My next case left no such room. Sex offender, in his 40's, abusing his pre-teen daughter. Penetration captured on video, saved to his laptop. No doubt it was him, no doubt it was his daughter. In addition to lap-top evidence, the police captured video of their interrogation and the defendant's confession. My job was to look at the recorded confession to see if there were any "issues". And sure enough, there was a pretty straight-forward Miranda violation. And because the evidence developed in the case virtually all sprung from the unconstitutional interrogation, the laptop and other powerful evidence would be suppressed as "fruit of the poisonous tree" if I won my Miranda argument.

Practically speaking, probably what would have happened is that the prosecutor would have sweetened the offer if the Miranda argument seemed powerful. And that would count as a "win" for the public defenders office.

But is getting a lighter sentence for the most vile of predators ever a "win"?

Yeah, seeing and catching the violation made me feel like a good lawyer. It was nice to know I learned something in law school.

But that was the beginning of the end of my volunteering. I simply couldn't justify punishing society by rewarding the defendant (monster ) because a stressed-out cop asked the wrong question at the wrong time. Which little girl would he next victimize? And what could I possible say to her or her mother about my role in securing the monster's lighter sentence?

Anyway, as it turns out, there are a lot of accused criminals I'd be more than happy to defend for free. But there are some people I wouldn't defend for any amount of money or for any high-minded and abstract principle.

And until someone can tell me why someone who's been caught on video abusing a child deserves the full protections of the law... until someone can explain to me how it can be possible that it is better for a monster child predator to go free than it is for a Miranda violation to go un-penalized...

Well... Until people grapple with that question, I don't think there is a good answer to this challenging question.

There is one practical and persuasive reason - aside from the love for the job and all the nervousness and adrenaline and gratification you derive from “winning” a case - for defense attorneys to defend the truly guilty: Without criminals paying the bills, there wouldn’t be enough work as a criminal defense attorney to make a living. And if you can’t make a living doing defense work, you won’t be around when it comes time to defend the truly innocent (or to protect the guilty against a truly criminal justice system that can be ruthlessly draconian). Funnily enough, I’ve been a defendant in three cases over the last 18 months. In each case, I’ve been truly innocent (I mean, beyond a shadow of a doubt innocent, proven by video.) If my attorneys didn’t earn a living defending drunk drivers and shoplifters and drug dealers and wife-beaters, they wouldn’t have been able to develop the courtroom expertise to have effectively defended me (I’ve been acquitted in the first two cases, my third case should see the same result if/when it is tried later this week).

Read more: Mike Stark, Rensselaer Polytechnic Institute (September 2, 2019). Why do good lawyers support/defend criminals? www.quora.com/Why-do-good-lawyers-support-defend-criminals.

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