Law in Contemporary Society

-- By MattConroy - 06 Jun 2017

What If Death Were No Different

There are roughly 3,000 people on death row in the United States. This number alone is an abomination, but there are also roughly 50,000 people serving life sentences without the possibility of parole. I should probably write an essay exploring the differences between these two sentences, but for now I will content myself with the proposition that they are the same and proceed as if it is true. Thus I want to know how to lawyer to solve life sentencing without parole in America.

Just Do It

The obvious solution to the question of how to lawyer to reduce the number of life sentences is to lawyer to reduce the number of life sentences. By this I mean be a lawyer who takes on clients that either face a life sentence or have been given a life sentence and advocate for them one at a time. By providing relentless and obnoxious advocacy in every case you throw a giant wrench in the machine. The goal is to make it too expensive to not give people the possibility of parole. This is not an ingenious solution; it is what the death penalty bar already does.

In class, Eben postulated that the most important distinction for a criminal lawyer is whether your client is in or out. This is generally true, but for a death penalty lawyer the thing is not a cell but the grave. However, when lawyering for a client faced with life without parole, the in vs out distinction becomes not a physical difference, but a legal one. A victory for this sort of lawyer would probably be a re-sentencing, but it appears to me that for the client nothing would change at a day to day level. This is not to say that it is not a real difference, but it is a difference which is harder to see as the lawyer on a day to day basis in order to actually feel like one is doing good. I may be wrong. This paragraph needs the input of Bernard Harcourt or someone like him. But it is my initial speculation.

Distributed Computing

What would happen if all of the lawyers who work with clients facing life sentences and death sentences worked together? My understanding is that the lawyers who work on these issues are connected by a common goal and not much else. I think the bar consists of a cadre of dedicated death lawyers, a group of non-specialist private criminal lawyers, public defenders, and Big Law lawyers who do the occasional drive-by pro bono work. People can move between the groups, but I do not know if the groups really coordinate in any meaningful sense. Could I lawyer to coordinate them?

I don’t know if this coordination is doable in a traditional sense of lawyering. But the world is changing because of computers, and well code is just words, and lawyering is using words to make change in society. So therefore, writing code is lawyering no matter how much a part of me wants it to be just a vehicle for comfortable vanity.

Now that I am out of the paradigm that lawyering is only what is taught in law school, I want to take another stab at defining the nature of the problem. I need to spend some time developing the precise technical definition, but it seems to me that at the core the fight against death of life sentences is a distributed computing problem. There are a bunch of different actors with limited information about what others are doing, but they are all solving sub-problems in the pursuit of solving the larger problem. In this paradigm then the question of how to lawyer to reduce life sentences becomes how do I create a more efficient distributed algorithm for this problem?

Specing this problem has some challenges. The most obvious challenge that I see is a lack of understanding of what the network graph looks like. The data exists. If Facebook, Google or LinkedIn? cared to they could build the graph and then figure out what all the nodes are good at. There might be some lawyering in convincing them to do this. The graph does have weird characteristics in that jurisdictional issues and client confidentiality concerns might cause problems. But even if we limit ourselves to a single state, I do not think that the paradigm of the problem is wrong. I need to spend more time on it, but I am encouraged by this as a starting point.

SVN and Dropbox

Another possible solution, which is interrelated with the previous one, would be to instead of trying to make the whole network better, just try and make the nodes more powerful. As Eben likes to point out, the tech lawyers use is terrible. I have to take his word for this because I have never actually seen the inside of a law practice. But if it is true then there would be value in building tools to make them better, and working as some sort of forward-deployed engineer lawyer hybrid. I am a bit uncomfortable with the idea, but this could be combined with a data collection scheme to harvest how all the lawyers who use my tools work and then try and use that to build the graph from the previous section.

The problem with this strategy is that getting people to actually adopt things is incredibly difficult. It is notable to me that when I worked at NASA we used both Dropbox and SVN concurrently for our code repositories. That was the system utilized by highly educated scientists and engineers. Even knowing what the right solution was and having access to it, we still used Dropbox. Part of me wants to believe that it was they just did not want to give the interns SVN access, but I know that is not true. I do not think simply building tools would be enough.

Navigation

Webs Webs

r5 - 05 Jun 2017 - 06:56:31 - MattConroy
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM