The following represents my (Godfrey) own personal perspective as a practicing criminal defense attorney.
Criminal defense attorneys generally do not have a philosophical problem with the idea of representing someone who might be or is “guilty” of some of the criminal charges facing her or him, or otherwise facing the possibility of proof beyond a reasonable doubt even if they are not guilty. In my own case, I view criminal prosecution as an aggressive powerplay by the state interposing itself as a matter of routine into the lives of private persons, especially in cases involving victimless crimes (which most are) but even in crimes with real victims. I reject the philosophical claim that “we all” are victims of someone who drives while suspended or without current tags, who smokes marijuana on his own land or who steals another’s property; in the first three cases no victims exist and in the fourth only those who owned the property have moral or, civilly, legal standing to complain in my view.
I favor restitution over vengeance philosophically. Were I to be a crime victim (and I have been a “victim” of petty thefts and minor other crimes) I would be much more interested in restitution of my damages, possibly with punitive damages, than in knowing that whoever stole my bicycle got fined, went to jail or got to talk to a probation agent for 18 months. Only in cases where irreparable harm to real people – not “We the People” but actual vulnerable human beings – were substantially likely and not preventable by less aggressive means would I favor criminal vengeance over restitution. While courts do impose restitution in many cases, they are much more diligent about making sure that the convict meets with his probation agent than in making sure that the victim is made whole; often criminal sanctions make it harder to make a victim whole, by branding him as a convict and therefore less employable practically.
I have written recently about my own philosophical objections to the term “criminal” as a noun; we have criminal justice (if it’s justice) and we have criminal charges and criminal codes, but “criminal” as a noun is used to describe a person, not a book or an act or a procedure. This is unfortunate, in my view. While I support full enforcement (with significant reforms) of immigration laws, I have the same objection to the term “illegals” to describe those who have entered or remained in the U.S. illegally; conduct can be very illegal but people aren’t “illegal people.”
What’s annoying about criminal practice? This scenario that I have seen again and again from clients of every race, educational background and income level from poverty to child-spoiling wealth.
Son has done something really dumb, maybe he’s been doing dumb things for the last 3-8 years. Son has been accused of doing more dumb things than he actually did – the cops overcharged somewhat – but he probably did some or maybe most of the dumb things he’s accused of this time. Mom is there in the lawyer’s office – my office – to hold his hand and shake her bony finger at him. Son’s attitude is arrogant, defiant and contemptuous; he’s as full of whining as my 6-year old on a time out. Dad is nowhere to be found. I need to keep my eye on my professional role; I do offer legal services for a living and reaching across the desk and slapping the stuffing out of the young moron for being a moron is bad for business, even if Mom herself has really WANTED to do it twice a day for the last six weeks. Son’s over 18 so I have to deal with son, but Mom’s funding the case (which means the duty is to the SON, not to Mom.)
Son is resistant to the idea of taking responsibility for the sixth time he got pulled over for motor vehicle stupidity, or the third time he got caught with weed. When I tell him that his lifestyle and approach will eventually land him in the least attractive barbed-wire-laced public housing unit in his jurisdiction, he insults me, tells me to kiss his [edit.] When I ask him what he does for a living, he mumbles something inaudible and looks at the floor. When I ask him what his plans are for life (so I can give the judge something to latch on to), he begins to yell at me for taking the side of the police and tells me to go [reproduce myself sexually.] Mom is rolling her eyes and trying not to cry. Again, the concept of “Dad” is not worth raising.
I tell Son that I cannot represent him without his permission since he’s over 18, and that Maryland has 20,000 lawyers or so; he has his pick (if he can pay) and absolutely need not pick me. He grunts something about the injustice of it all. I think about dumping the case, but remember I cannot dump the case without ruining a referral relationship and causing offense. I wish I could meet “Dad” and slap him hard with a closed hand; I’d be willing to take a weekend in jail myself and a disciplinary complaint against me, but then recover my senses.
Finally I have Son sign the services agreement, and accept Mom’s check. I explain to Mom that only my communications with her son are privileged and that I cannot have her on the phone for certain conversations. I groan when I say this as Mom is earnest and usually pleasant while Son is not apparently fluent in his native tongue except for the words [edit], [edit] and [editttEDittt], despite a free public education of bad or often pretty good quality. I know that Son will blow off his appointments with me, even if Mom agrees to drive him; he can afford concert tickets to some hard rock concert, but he cannot afford a $12.00 watch. I then wish that Bar rules would permit the slapping of a client in the interest of judicial economy. I thank Mom and Son, shaking hands with each though only Mom actually looks at me. Having met Son, I want to take a shower.
That’s what’s unpleasant about criminal defense. It’s not the representation of the so-called “criminal” or the use of technical arguments in court. It’s the miserable attitudes of some clients and the cold realization that the future of the nation won’t look me or life in the face. Some days I feel like the most patriotic thing I can do is to change my own kids’ clothes and give them a bath; at least they won’t grow up not knowing their father’s face.
