Going Too Far

From Norm Pattis:

The criminal law is not about moral blameworthiness. I cannot emphasize this enough…Thus a person accused is presumed innocent. If the state cannot prove the allegations it has raised, the defendant goes free whether they are morally blameworthy or not.


You just have to wonder.  If the criminal law is “not about moral blameworthiness”, then why is a verdict in favor of the prosecution called “guilty”?  This is a term that means, precisely, moral blameworthiness.  It might be truer to say that a “not guilty” verdict – in favor of the defense – is not about moral blameworthiness, since you can be found not guilty but that doesn’t amount to an exoneration, at least intellectually it doesn’t, although emotionally it often does.  Or should.

“Presumed innocent”?  We’ve talked about that before.  What Norm says here is both an accurate statement of what we say we believe, and extremely – even dangerously – naive coming from a lawyer.

It’s one thing for a lawyer to believe that it’s fine if someone he represents, though factually or morally guilty, is found not guilty at a trial.  But to go on from there and assert that the law has nothing to do with morality is taking that unexceptionable, practical idea and building it into a whole outlook on  reality that is part tedious 20th century relativism, and part pretentious intellectual fiction.

A process that can end in a finding of “guilt” is as obviously about moral blameworthiness as anything could possibly be.  And the presumption of innocence is a pious and ultimately false bromide that everyone knows is exactly that, except in the most technical and legalistic sense.

I’ve come back to this a few times because it recurs so often out there in the blawgosphere – and it’s more common in lawyer blogs than elsewhere – and because it’s pernicious.  It is the defense bar’s contribution to the terminal dysfunction of the justice system, the complement to bad police and prosecutors and judges, which undermines not only the system’s purpose, but also the interests of criminal defendants as a group – their clients.

And mine.  So when I see it I get a little upset.

One of the things that is so maddening and frustrating about it is its ultimate stupidity.  The belief itself – moral relativism or indifference – is so obviously dated and tiresome.  And on the practical level there is absolutely no upside for criminal defense lawyers to take that position.  There would be an upside for prosecutors to take it – but ironically they ordinarily don’t.  And when they do, you’re talking about a dangerous prosecutor and probably a lousy person.  Prosecutors who believe that way certainly shouldn’t be prosecutors.  They probably shouldn’t even be lawyers.

And beyond even that, it is always, always, intellectually dishonest.  Transparent double talk.  Nobody really believes in moral relativism.  All arguments for one position as opposed to another are at bottom moral ones, and in the adversarial system one must always argue for one position as opposed to another.

The job of criminal defense is difficult enough.  Why do so many criminal defense lawyers pointlessly increase the difficulty?

I could make an argument that this silly intellectual affectation has done more to make the justice system dysfunctional and twisted than any other single factor.  The silver lining in the cloud is that it’s far more common among the older lawyers than among the younger ones.  It’s an establishment position.  And the establishment is crumbling.




Filed under wrongful convictions

2 responses to “Going Too Far

  1. Rob

    If instead of “guilty” people were found “wrong”, would you still say criminal law is about moral blameworthiness? The word would be different but the results would be exactly the same. And the results are substantive and count for something material.

    If you want to argue that the results of criminal law are concerned with moral blame, that seems more significant and meaningful than the word we choose to summarize the end result.

    But I agree w/ the presumed innocence piece. IMO people are educated to believe authority (cops, judges, lawyers, the legal system in general) are right simply by virtue of that authority. That’s a tough thing to overcome.


    • If the word was “wrong” as opposed to “guilty”, it would still be about moral blameworthiness. It’s not the word that makes it so; it is so, and thus the word. The difference between a civil wrong and a criminal wrong is the degree of moral blameworthiness of the conduct. The finding of guilt engenders social and moral opprobrium. This is the reason we fight findings of guilt that are unjustified, that are themselves wrong, and also one of the reasons this is so difficult: you are trying to turn the moral tables on the collective judgment of the community, which wouldn’t have charged to begin with unless it believed in the defendant’s guilt.

      Now there are frequently situations where it is tactically advantageous to defuse or downplay the moral conflict inherent in a contested criminal case. But there are others where it is advantageous to accentuate it. What you can never do is ignore it.

      And another thing about Pattis’ post that irked me is that, contrary to his assertions, the lawyer does sometimes have a role to play in the client’s “absolution”, sometimes even a big role. It depends on the client, the circumstances, the truth of what the client may or may not have done. Sometimes the lawyer is the only help for absolution the client can hope for.

      The lawyer is always the client’s truest friend. And often the only one.

      Lawyering is a tough business. And a complicated one, because it’s not just a business.


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