It happened again. Tonight, actually. I had someone ask me why I wanted to work for criminals. It’s not the first time I’ve had to explain my reasoning but it is the first time I have been motivated to dedicate a blog post to the matter. Without further ado, some informal thoughts on why I want to be a criminal defense attorney.
I. THE ADVERSARY SYSTEM
At the outset, you should know that I am only really interested in criminal law. Other types of law are mostly uninteresting to me (though I admit a strange, nerdy love of property law).
Now, to understand where I come from, you need to understand a little bit about the American justice system. Like our brethren across the pond, we have an adversarial justice system. What this means is that legal matters are litigated by putting party A against party B and letting a jury of lay people decide if the complaining party proved its case. On the criminal side, that means that the government has to prove beyond a reasonable doubt that the accused actually committed the crime. The defendant doesn’t have to prove a thing…(s)he certainly doesn’t have to prove innocence.
Well think of the consequences of guilt. A person found guilty is branded a convict, and typically deprived of his/her liberty. Those are the direct consequences but there are collateral ones too. A father put in jail won’t be at home to support his family. He’ll lose any job he had and it’ll be all the more difficult to get one when he returns to society. People will brand him a convict and his reputation will forever be affected. In short, there is a lot at stake. Doesn’t it make sense to put heavy proof requirements on the government before subjecting an accused to such punishments?
I think it does. I think that when we give the State power to ruin someone’s life and reputation, we should make them earn that power. I think we should keep the government honest. You wanna convict somebody for a crime, you gotta earn that conviction.
This line of thinking seems only natural in other aspects of life, doesn’t it? Consider politics. When a politician runs un-opposed, doesn’t it feel wrong? We want someone to oppose them. After all, a victory in a game without an opponent is hollow.
So let’s extend the thinking. Remember that saying “pick on someone your own size”? That too matters in the criminal system. Imagine a system where you’re allowed to defend yourself but only nominally. You’re given far too little money to actually mount a successful defense. Is this any better than being denied a defense entirely? It’s akin to an adult beating up a five year old. It’s a patently unfair fight. How could you expect the five year old to win? You can’t. So what’s the significance of the fight in the first place?
My point to all of this is that a defense attorney has not only a proper but also an important role in the American justice system. If you take away the defense attorney, you make the process of convicting someone hollow. I, for one, would like to know that when a person goes to jail it’s not because of a flawed system but because he actually committed the crime.
II. BUT HOW CAN YOU DEFEND THE GUILTY??
Truthfully, most people acknowledge what I have stated above. They realize that a meaningful justice system allows both parties a fair fight. But it doesn’t matter to them. After all, I just said it takes both sides so why not work for the prosecution? They don’t understand how I could represent someone I knew to be guilty. Systemic concerns surely aren’t applicable any more right? We’re no longer faced with the concern of wrongful conviction, so how can I do it?
Where to begin…
First of all, if there’s going to be a determination of guilt, would you rather one defense attorney do it or twelve jurors? Maybe I learn in the course of representing my client that he’s guilty. Wouldn’t you rather the jury be the final voice on that, not me? I don’t actually think most people want to see a system where an attorney can abandon his or her client upon learning the status of the client’s guilt. And do note, I won’t know up front if my client is guilty. I’d never take the police’s word for it because of course they think he’s guilty. No, my investigation team will do an independent investigation. As a result, it may be several months into the representation before I would know that a client is guilty. You’d really support the idea of abandoning a client halfway through the representation?
Second, representing a client constitutes so much more than just making a guilt or innocence determination. Plenty of defense attorneys negotiate plea deals for their clients each business day. That’s right, a defense attorney is advising his or her client to plead guilty. We recognize that many cases will lose at trial because evidence of guilt is very strong. From this point, our job turns to ensuring that our client receives a fair sentence. This piece of the puzzle is often overlooked by non-lawyers but it’s a huge piece to us in the profession. Even the guilty deserve sentences that are just and fit the crime.
Third, my representation of a guilty defendant does not constitute an endorsement of his behavior or a desire to keep criminals on the street. This particular concept seems especially hard for some people to grasp but I don’t know why. We get this concept in other aspects of American life. “I don’t agree with what you’re saying but I’ll die defending your right to say it” comes to mind. I don’t have to like my clients in order to stand up for their rights to have a fair trial and/or receive a fair punishment.
Fourth, a refusal to defend the guilty connotes a belief in your own righteousness. It connotes the belief that you are better than the man you are asked to defend. I have committed no crime but that does not mean I am free from sin. No man is. I am no better than the defendant I represent though our sins may differ in nature and severity. It is not my place to judge. Judgment is the Lord’s alone.
Fifth, most criminals are not inherently evil. Most are fallible humans who make mistakes. Often times, these mistakes are the result of poverty, addiction, and mental health issues. Who is looking out for these people? The prosecutor trying to put them in prison? No. On the contrary, it is a defendant’s attorney who is in the best position to assist in getting the needed help. The holistic approach to defense is one I believe strongly in. If we as defense attorneys can help address the problems our clients have at the individual level, we can reduce crime on an overall level.
Sixth, because I want the opportunity to protect the innocent as well. This particular point goes to those who say “well sure somebody needs to defend criminal defendants but why you?” To start, we can see that it’s a dubious logic to say, “let someone else do it.” Either you have to turn around to that guy and ask him why he’s representing criminal suspects or you have to believe that some people are less morally blameworthy for representing the guilty. Both approaches are wholly unsupportable.
So why do I pick the defense side? Because the innocent clients make it all worthwhile. And because the government doesn’t need any more help. It has plenty of money and legal mechanisms in its favor. The criminal case is almost always a David v. Goliath story and I like the underdog. Even farther still, I feel uncomfortable with the idea of actively trying to harm someone. The prosecution has to bring a case with the intent to harm a defendant (generally through imprisonment). I would rather be responsible for putting a guilty man on the streets than sending an innocent man to jail or giving a guilty man an unjust prison sentence. I can live with doing the first, I can’t with doing the second.
III. I GET ALL THAT, BUT ISN’T THE PAY TERRIBLE???
Yes. Well, compared to other legal fields it certainly is. For example, in Massachusetts, the rate for defending most matters that you’d bill to CPCS is $50/hour. Not very much. Of course, in private practice, you can charge whatever the market (and the bar association) will let you get away with but most criminals are not able to afford an attorney. In fact, 75%-90% of criminal suspects are indigent and require a public defender / appointed counsel.
Compare this hourly rate with what a first-year associate at a firm like DLA Piper would make. With a starting salary of $160,000 and a yearly billable hour target of somewhere a little north of 2,000 hours, that puts us right around $80/hour.
Now, working for the district attorney prosecuting cases is also low-paying. It’s generally comparable to defense work. Bottom line: you don’t get into criminal law to make money, period.
But what it lacks in monetary value it makes up for in both importance and excitement. Criminal law, unlike corporate law, is never boring. Nor is it ever low-risk. You have an individual’s life in your hands. Make a mistake and you could ruin it. I find that importance and that responsibility thrilling. It’s what got me interested and has held my attention. One thing I refuse to do is a job that bores me. I have the great fortune of knowing what type of work I love and I wouldn’t trade it for the corporate world, even if I was offered a $1,000/hour salary.
It’d be rare to find a criminal defense attorney who wants to encourage criminal behavior. The vast majority of criminal defense attorneys believe in the concept “innocent until proven guilty” and have dedicated their careers to protecting the notion. The State has enormous power to ruin a person’s life. But if it wins its case, it should be done “fair and square.” Let a jury of twelve peers decide and make sure the defendant gets a meaningful defense before that decision is rendered.
Moreover, most criminal defense attorneys realize that the status of being a “criminal” or being “guilty” is not black and white. Plenty of guilty defendants receive unjust sentences. Plenty of guilty defendants need attention such as drug treatment. The job of being a successful advocate is not only about trying to save the innocent, it’s also about ensuring the guilty are treated fairly.
I believe in all of this. I believe in holding the system accountable. I believe that most defendants’ status as innocent or guilty is an oversimplification. I believe that working as a defense attorney offers a lot of opportunity to help get treatment to those who need it. And I believe that it’s much easier to sleep at night knowing that I did no harm. We live in a system that claims punishment is about rehabilitation and deterrence when it’s actually about retribution and retaliation. Well I don’t believe in retaliation, I believe in turning the other cheek. And I can’t bring myself to work for the side that seeks to retaliate. I don’t have the stomach for it or the belief system to support it. That’s why I want to be a criminal defense attorney.