The Walmart-ization Of Justice

If you get over to federal court much you’ll hear lots of talk about “sequestration”, a veritable daily crisis of budget constraints.

Ho-hum.  Budget is as budget does.

The economics of some things are insoluble:  how do you pay for something no one wants?  No one, that is, except the poor schmuck in the dock?  The fact of the matter is that unless the poor schmuck can pay for it there’s no one else who will.  At least, not really.  As a sop to the consciences of the men in charge, of course, the regime will provide token service, the proverbial empty gesture.  The ratio of federal prosecutor resources to federal defender resources:  28 to 1.

Ease in life is not an inherently bad thing.  The ancient Greek philosophers, like Aristotle, thought leisure to be an essential social good, and I imagine it is when it is conferred upon the right people.

Then again, no one can have it easy all the time, and some things just aren’t easy but must be done anyway.

If only due to the sophisticated humor, I can’t improve upon Kierkegaard on this subject:

It is now about four years ago that I got the notion of wanting to try my luck as an author. I remember it quite clearly; it was on a Sunday, yes, that’s it, a Sunday afternoon. I was seated as usual, out-of-doors at the cafe in the Fredricksberg Garden. I had been a student for half a score of years. Although never lazy, all my activity nevertheless was like a glittering inactivity, a kind of occupation for which I still have a great partiality, and for which perhaps I even have a little genius. I read much, spent the remainder of the day idling and thinking, but that was all it came to.

So there I sat and smoked my cigar until I lapsed into thought. Among other thoughts I remember these: “You are going on,” I said to myself, “to become an old man, without being anything, and without really undertaking to do anything. On the other hand, wherever you look about you, in literature and in life, you see the celebrated names and figures, the precious and much heralded men who are coming into prominence and are much talked about, the many benefactors of the age who know how to benefit mankind by making life easier and easier, some by railways, others by omnibuses and steamboats, others by the telegraph, others by easily apprehended compendiums and short recitals of everything worth knowing, and finally the true benefactors of the age who make spiritual existence in virtue of thought easier and easier, yet more and more significant. And what are you doing?” Here my soliloquy was interrupted, for my cigar was smoked out and a new one had to be lit. So I smoked again, and then suddenly this thought flashed through my mind, “You must do something, but inasmuch as with your limited capacities it will be impossible to make anything easier than it has become, you must, with the same humanitarian enthusiasm as the others, undertake to make something harder.” This notion pleased me immensely, and at the same time it flattered me to think that I, like the rest of them, would be loved and esteemed by the whole community. For when all combine in every way to make everything easier, there remains only one possible danger, namely, that the ease becomes altogether too great; then there is only one want left, though it is not yet a felt want, when people will want difficulty. Out of love for mankind, and out of despair at my embarrassing situation, seeing that I had accomplished nothing and was unable to make anything easier than it had already been made, and moved by a genuine interest in those who make everything easy, I conceived it as my task to create difficulties everywhere.

Of course, given this habit of mind, Soren was fortunate to be able to live on inherited wealth.  You won’t find investors for an idea the goal of which is to make things more difficult than they otherwise would be.  Or appear to be.

And yet, and yet.  People talk favorably about being “empowered”.  Here is what constitutes the terrible temptation of power:  that difficult things are made to seem easy.  I say “seem” because it is an oxymoron:  difficult things are not easy, by definition.  And when they are made to seem easy you know something’s wrong.  You know someone is getting screwed because if it gets done and if it was difficult to do then someone labored through that difficulty.  Whoever is making it seem easy is a deceiver.

Snake oil salesman’s pitch:  drink this elixir and all will be well.  Just that easy.  But it never is.

The acquittals I have won doing criminal defense have probably been the most significant contributions I have made to my country and my fellow human beings.  They were all extremely hard won – there is almost no way to describe it to someone who hasn’t done it.  And they were all, without exception, very poorly compensated.  To the extent I have made any money, it has been made elsewhere.

Prosecuting is not remotely comparable.  While I will stipulate that many criminal prosecutions are socially worthwhile and an important service, it is simply a thousand fold easier to prosecute – maybe infinitely easier – than to defend.  Which is not to pick on prosecutors at all.  The point is that we ask lawyers to defend the accused, expect them to do a good job in the face of great and sometimes insurmountable adversity and then, effectively, we don’t pay them.  I’m certainly not advocating that it’s wrong to pay the prosecutors, but the imbalance of it all has reached dizzying heights.

Imbalance, of course, is more or less a metaphor for injustice.  A just society is an extremely difficult thing to achieve; and to the extent you do achieve one, it remains extremely difficult to maintain what you have built up.  And this is why we have lawyers.  We may have “too many”, but more importantly – and like other occupations and professions – no one wants to do the hard but necessary jobs, only the things that can be made to seem easy and are nowhere near as necessary, if they are necessary at all.  Like evictions.  And mergers and acquisitions.

Just as the ugly and hidden reality underneath Wal-mart and Apple involves slave labor in far off countries, so the ugly and hidden reality underneath the collective neglect of our responsibilities to build and maintain a just society are hollowed out neighborhoods of boarded up homes and lots of prisoners who, although locked away out of view are beginning to make at least a few people uncomfortable, like some federal judges in California.

Kierkegaard was only kidding.  He didn’t really believe in making difficulties; he was admonishing us to recognize difficulties openly and not try to conceal or deny them.  The difficulty is already there.  Our job is to conform our minds to this reality.

Of course we’re never going to do that if we don’t believe there’s any objective reality in the first place, not to mention believing there’s no such thing as truth.  Or justice.

Clark is onto something on that score, don’t you think?

At bottom, as with so many things, this is not an economic problem.  This is a moral problem, and a rule of law problem.  And of course it has developed into an intractable problem when the very people who are the only ones who can correct it, and who in many ways are the primary victims of it, don’t believe in the law or the truth or morality in the first place.

Or say they don’t, which is more like it because, as Clark over at Popehat points out, no one really doesn’t believe in truth or justice or the law.  That’s an intellectual affectation, and an especially harmful one in lawyers.


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Filed under financial crisis, Media incompetence/bias, Striking lawyers, wrongful convictions

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