I am as “Law-and-Order” as anyone. I have no problem with mandatory minimums and I don’t get worked up by the Sentencing Guidelines. I’m not anti-death penalty. I don’t think drug offenders should get a chance at taxpayer-funded rehabilitation.
While I avoid partisan politics here, my regular readers (both of them) will recognize that Shawn’s feelings about the building blocks of the retribution system are different than mine. I am not as “Law-and-Order” as anyone. I do have a problem with mandatory minimums. I do get worked up over the sentencing guidelines. I am anti-death-penalty and I don’t think drug offenders should even be “offenders.”
(Not to pick on Shawn, but his politics are also internally inconsistent — it is in a post lamenting relevant conduct, the heart of the U.S. Sentencing Guidelines, that he claims that he doesn’t “get worked up by the Sentencing Guidelines”.)
Anyway, Shawn’s got me thinking about how the connection between politics and this job. Here’s a little video in which I discuss whether someone in this line of work can remain oblivious to the larger political implications of the job:
That’s not, of course, to say that being politically libertarian makes someone a good criminal-defense lawyer. Nor is it to say that Republicans provide deficient representation. But there are fundamental philosophical differences between the Republican worldview and the defender worldview.
For example, the principle that the slings and arrows of fortune might relieve an individual of responsibility for his actions is foreign to the Republican philosophy (I have one friend, a plaintiff’s lawyer in North Texas, who was compelled to leave the Republican party when he developed too much empathy). Defenders, however, stand up for the unlucky. None of our clients are as fortunate as we are. A critical part of the job is being able to explain to judges and juries how it is that our clients’ bad luck contributed to their transgressions against the peace and dignity of the State. If we didn’t believe it, we couldn’t persuasively argue it.
It might not make a difference in the simple cases — the DWIs and possession-of-less-than-a-gram-of-cocaine cases. But the bigger the trouble, the harsher the sentence, the higher the level at which we play, the more important is the belief that what we do is right on every level — that we are on the right side of the front lines in the epic struggle between governmental power and individual freedom.
Another example: if I thought that mandatory minimums were okay — that the morons in Congress had correctly decided that my client, and every other poor schmoe charged with the same crime, deserved at least 5 years (or 10 years or 15 years or 20 years or life) in prison, I would not carry my passionate aversion to government into the courtroom, and the people sentencing my clients would see the reasonable range of punishment as, say, 15 years to life (for the possession with intent to deliver 400 or more grams of cocaine case). I’d rather show them why the appropriate sentence is probation and let the jury about not being allowed to give the sentence that they think is right.
If the sentencing guidelines were just alright with me, I wouldn’t be going in swinging to every federal sentencing, trying to explain to judges that they really don’t have to follow the guidelines and why they shouldn’t. I wouldn’t have gotten some of the sentence reductions that I’ve achieved for my clients, but life would be much easier without a soul.