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The Price of Justice

-- By BrianHooven - 25 Feb 2013

The Problem

The problem with justice is that it’s expensive. The simplest way to define justice is as the preservation of the rights of all the people. Such rights come in many different varieties, they may be given by the constitution, granted by some social contract, or be natural consequences of humanity. Wherever the rights of the people come from, they have one thing in common: they cost money.

Rights and the Courts

Before I discuss why this is important, I will briefly talk about what a “right” is. A right is an entitlement to something. By itself, a right is nothing, an ephemeral concept that may or may not be realized. When a person argues for the right to bear arms, they are not advocating that everyone be given a gun immediately; they are arguing that people should be entitled to have a gun. When a person decides to go out and buy a gun, they are then exercising this right, and it becomes real. To further illustrate the nature of rights, imagine that our gun-enthusiast finds a police officer prohibiting entry to the gun store because he does not think people should be able to have guns. Consequently our gun-enthusiast goes the route of any American, and sues.

In court, is where rights are determined. Our gun-enthusiast must now match the best lawyer he can afford against whoever the government decides to send in support of its police officer. The judge will then decide whether or not our gun-enthusiast actually does have a right to bear arms. Once the judge has decided, and his decision has been enforced, and our gun-enthusiast is happy with his pistol, then it seems that his right to bear arms has become real. It is this process of the realization of rights that is expensive, and those that cannot pay for it often miss out. Rights belong to those who can afford them, and thus I reiterate: justice is expensive.

The Criminal Justice System

Nowhere is the price of rights more significant than in the criminal “justice” system. The dichotomy here is one that has been widely discussed, and minimally remedied. The sheer scope of problems with the criminal justice system is nearly insurmountable, however, perhaps one in particular can be remedied. The problem is that the resources that are allocated to the various District Attorney offices vastly outweigh the resources that are given to their Public Defender counterparts. This creates a system where you get what you pay for, and if you’re being prosecuted and indigent, most of your taxes are paying for you to go to jail.

Once we examine the elements of a trial it becomes obvious why this is so. In a trial there are lawyers, investigators, and witnesses, all of which require some type of resources. Lawyers and investigators are both paid for by whichever side they work, and they come in degrees of skill. Witnesses have to be found by either the lawyers or investigators, making them partially a product of the skill of the aforementioned parties. Then there is the evidence, which has to be found, and the law, which has to be researched. All of these things cost money, and it is these things that will be compared to determine the fate of whoever the alleged criminal is.

The better the lawyer, the more they cost. There are always exceptions, and occasionally there will be skilled lawyers that are available in the public defenders office. However, despite the superior prestige and advancement opportunities of the District Attorney’s office, they pay their attorneys very similarly to the public defender. Perhaps there is not a steep differential in skill between the attorneys at the two offices, despite there being no private sector alternative to the District Attorney’s office to lure away the lawyers with enough skill to be desireable to profitable firms and organizations. Luckily, although they may not have the edge in skill, they have the entire police force to help make “reasonable doubt” seem much less reasonable. Many public defenders offices rely on the defenders themselves to do the investigatory work. However, with the police department comes the forensics, the access to labs, the evidence that they discover, and the discretion of where to look for it. Many public defenders don’t even have enough time to spend thirty minutes on each case that they are assigned, it seems unlikely that they will be able to do much investigation on their own. Finally many defenses put on by public defenders have limited witnesses. They simply do not have the resources to locate tangentially relevant people that the defendant is not in contact with or that were not identified at the scene. Given the gross disparity of resources between the state defense and the state prosecution, it is hardly surprising that the majority of indigent clients unnecessarily plead guilty (for some examples of gross public defender misconduct just check the Innocence Project http://www.ip-no.org/exonoree-profile/darrin-hill).

Problem Solved?

Society's Solution

The solution to this problem is to do what thin wealthy do: hire a firm with enough resources to match the government. However, since the indigent can’t afford a lawyer in the first place this becomes an issue. This is where the court began to implement court-appointments, and large law firm began to “cherish” opportunities for pro bono work. Thus many have implemented pro bono hours that can count towards associates’ billable hour requirement, some firms even electing to not have limits. Unfortunately, I have yet to find a law firm with available statistics on the turnover rate for attorneys that pursue “unlimited” pro bono hours to fulfill their billable requirements, however, I imagine they are not optimistic.

My Solution

Thus there is an obvious solution: a firm with access to ample resources that is willing to put those resources to work to solve this problem. That is my firm. The issue of how exactly to achieve this balance is an issue that still must be explored.

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