HR 916 – a Dissenting Voice


It’s hard to find anyone in the blawgosphere who’s not in favor of HR 916, the John R. Justice rosecutors and Defenders Incentive Act of 2007. Gideon calls it “excellent news,” as does Capital Defense Weekly. PD Stuff calls it “absolutely fantastic.” Jeri Merritt calls it “good news.” Fight ‘Em ‘Til We Can’t urges us to ask our senators to support the senate equivalent.

The Wretched of the Earth says: “Just think, without good prosecutors, a guilty murder or rapist could walk. And equally disturbing, without good public defenders, innocent people without the money to pay for a lawyer languish in jail or prison.”

Let me be the voice of dissent.

If we were talking about $10,000 untaxed (call it the equivalent of $12,000 taxable) raises for all public defenders, I would say “hell, yes!” Nobody deserves a raise more.

Contrary to TWotE’s suggestion, prosecutors are not equally deserving. “Without good prosecutors, a guilty murderer or rapist could walk”? Where did that come from? Most prosecutors aren’t prosecuting guilty murderers and rapists; most prosecutors are prosecuting drug crimes, DWIs, shoplifting cases, petty assaults, trying to put people who don’t belong in boxes, in boxes.

We don’t need to increase the quality of prosecutions. We need to decrease the quantity of prosecutions and of prosecutors. Paying prosecutors more does nothing to make people more free. Isn’t that our mission? By making 20% of the prosecutors redundant by decriminalizing dope and reducing sentences for other nonviolent crimes, we could increase the other prosecutors’ wages by 25% and make America both safer and more free.

Paying PDs more may help make people more free, but I suspect that 20% more PDs in every PD’s office would go a lot farther than a 20% pay raise for all PDs.

If there were equivalent numbers of prosecutors and defenders, I might be willing to consider raises for prosecutors a necessary concession in exchange for raises for defenders. But there aren’t. There are more prosecutors than public defenders (I couldn’t find numbers on the web, but I know it to be true), and DAs’ offices are generally less underfunded, less understaffed, and less underpaid than PDs’ offices.

PDs are not well-loved by politicians (here’s a clue: John R. Justice was a prosecutor). PDs who expect to see this money may be in for a grave disappointment even if the Senate passes the act. Here’s why, in the form of a two-question multiple-choice test:

1. The people who decide where the money is spent in your jurisdiction know that the federal government is going to give every public defender a $12,000 annual subsidy. Do they a) raise defenders’ salaries nonetheless; b) keep defenders’ salaries where they are; or c) lower defenders’ salaries by $11,999, figuring that defenders were paid enough before and should be happy with a net $1 raise?
2. Having cut defenders’ salaries by $11,999, do the people who decide where public money is spent in your jurisdiction use it a) to feed the hungry and house the homeless; b) on hookers and crack for the monthly county commissioners’ retreat; or c) to buy AR-15s for the SWAT team and build a new jail, in order to prove their tough-on-crime credentials?

Almost anywhere in America, the correct answers are “c” and “c.” If you live in one of the exceptions, I’d love to know where it is.

Sometimes we have to argue against our own personal interests in order to make people more free. That’s why defenders, many of whom profit from the war on drugs (in the form of fees paid by people accused), are among its most vociferous critics. This law, though a major boon to our brethren and sistren who don’t need to sully with commerce their sacred duty to defend freedom, is bad for the freedom they defend.


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