What if They Gave a WOD and Nobody Came?

 Posted on November 21, 2008 in Uncategorized

The New York Times suggests a solution to the problem of insufficient funding for indigent defense:

With states struggling to come up with financing for schools and hospitals, we fear politicians are unlikely to argue for significantly more money for public defenders' offices. To solve the immediate crisis, new sources of support would have to be found - quickly. One approach would be for states to increase the registration fees charged to lawyers. The private bar also must significantly expand pro bono representation. Such efforts alone cannot fill the gap. Ultimately, government must take responsibility. All defendants, rich or poor, have the right to competent legal counsel.

(Brother Greenfield responds, with Twitterworthy conciseness, "Bite Me.")

Let's reason this out.

States are struggling to come up with financing for schools and hospitals.

The government has to provide effective representation to the indigent accused. They accuse somebody, they have to make sure she can afford counsel.

If the government spends more on prosecutions, it has to spend more on defense as well (unless it's just prosecuting those who can afford to hire counsel).

So why, instead of bailing out the government by spending more (in the form of higher taxes, or higher lawyer registration fees, or more "pro bono" lawyer time) on indigent representation, aren't we talking about spending less on criminal prosecution?

The Times's suggestion arises out of the conventional wisdom that lawyers have a societal obligation to defend the poor pro bono; this conventional wisdom accreted before Gideon, and before the "War on Drugs" was in full swing. But pro bono publico means for the public good, and most criminal-defense lawyers hold very strongly the opinion that the WOD is not in the public good. Participating in the WOD enables the WOD. Lawyers don't have any obligation to be enablers of crackpot policy.

Requiring lawyers to subsidize, with their time and money, the criminal justice system that takes money away from the schools and hospitals would be like requiring the drunk's abused spouse to pay for the food and gin so the abuser could pay the electric bill.

Suppose that all defense lawyers decided that the death penalty was unconscionable, concluded that the only way to stop the government from killing its people would be to conscientiously object to participation in death penalty cases, and did so. Death penalty prosecutions would grind to a halt.

That is an example of how we can influence policy not only through what we do, but also through the things we refuse to do. This only works, however, if and to the extent that there is a shortage of lawyers willing to take whatever the government is willing to pay for the work. The current situation, in which the government can afford to prosecute more cases than it can afford to defend, may present an opportunity to the bar. If we refuse to bail out the system, they system will hit rock bottom, and something will to give. If we can do it for the public good, we should.

So how about if lawyers refuse to work pro bono on the drug cases, but take on the other cases for free? No good - now you're asking the battered spouse to pay for the food so the drunk can pay the electric bill and the food bill. That's just shifting the money around.

The solution to the problem of indigent defense is not to spend more on indigent defense, but rather to spend less on prosecution.

The quickest, easiest, least painless way to pay for schools, hospitals, and criminal justice is to gut the criminal justice system by eliminating the most wasteful and harmful single program in the history of criminal justice: the WOD.

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