What’s Wrong With Criminal Defense Lawyers?

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As a group, criminal defense attorneys have failed miserably. Despite our efforts, prisons have grown like a strain of kudzu that thrives in any climate. In 1900, the American incarceration rate was 0.69 per 1,000 adults. In 2000, it was 4.78 per 1,000. Only prisoners are included in these numbers, almost a million more people are locked up in local jails. This orgy of incarceration has occurred amid a similar increase in the number of lawyers. In Georgia, the number of attorneys per capita tripled between 1900 and 2003. During that century, increases in household income expanded the population who could afford lawyers. For the first time, governments began helping those who could not. In 1900, no state provided attorneys to indigent defendants. By the 1950s, many states provided attorneys for indigent defendants, and, in 1963, the U.S. Supreme Court required all states to do so in Gideon v. Wainwright. Yet the decades after Gideon saw the biggest increase in incarceration in human history. If the job of criminal defense attorneys is keeping salvageable human beings out of prison, we have failed.

Compare this performance to medicine. My wife is alive because of a doctor. My son was born because doctors were able to save her life. Both of my grandfathers have lived well into their 80s as a result of modern medical advances. Their experiences are not uncommon. Between 1900 and 2000, life expectancy in the U.S. increased from 47 years to 77 years. Roughly 39% of the people who are alive today owe their lives to modern medicine.

If naïve Martian tried to study the effect of criminal defense attorneys armed only with statistics and regression software, he might conclude that an increase in the number of criminal defense attorneys causes greater incarceration. There is a tight correlation between the two. Even highly skilled criminal defense attorneys do not mean less incarceration. The federal system has long had well-compensated public defenders, most of whom earn six-figure salaries. Competition for these positions is keen, and they often go to graduates of top law schools. As a staff attorney at the U.S. Court of Appeals for the Eleventh Circuit, I read scores of polished briefs written by federal public defenders. These attorneys’ hard work and fine words did their clients little good. The defendant almost always lost.

Effective representation is not a panacea for the problems of the criminal justice system because society would never tolerate “miracle defenses” the way it embraces “miracle drugs.” Bacteria and tumors don’t vote. They are a common enemy, and no employable politician wants his constituents dead. Doctors are warriors in a communal fight, and roughly a third of government revenue is spent on health care. Crime victims, property owners, and concerned parents do vote, and they often care passionately about controlling crime. They tolerate criminal defense attorneys not to “help criminals,” but to keep law enforcement from arresting the wrong people. Many good citizens are leery of our trade. Let an advocate become too eloquent, and he might place his clients above the law. Let him mass produce this elixir and we’d be half way to anarchy. Free judges from mandatory minimums, and silver-tongued advocates might prove them gullible. No defense attorney has found the equivalent of penicillan, and if one did, it would soon be illegal.

When criminal defense attorneys claim the same efficacy as doctors, they become charlatans. There is no cure for a DUI, though there are many people eager to buy one. There is a course of treatment, which typically involves jail, fines, and license suspension. An attorney can help you win acquittal in a close case or one with police misconduct. He can help you win a charge reduction if the courts are swamped or the prosecutor is sympathetic. He can muster mitigating evidence, craft a course of rehabilitation, and advocate alternatives to incarceration. But he cannot give you impunity to violate the law.

The shame of our profession is that too many attorneys ignore the best arguments for the arguments that scared and naïve clients want to hear. American criminal sentences are disgracefully harsh. In the land of the free, we incarcerate more people than communist China, despite having one quarter of its population. Prison expenditures have impoverished state universities and forced many students deep into debt. The financial cost of many burglary sentences is greater than the cost of a four-year college degree.  Mass incarceration ruins lives, guts families, and has scarred an entire generation. There are principled arguments for humane sentences, and Georgia law often gives judges the discretion to impose them. The criminal defense bar should stop selling snake oil and focus on justice.

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