How can this be just?

Over at Arbitrary and Capricious Skelly recently pointed to a decision by U.S. District Judge Charles Pyle that said that counties in Arizona did not have to give prosecutors and court-appointed defense attorneys equal pay because prosecutors and defense attorneys are not “similarly situated.” From the news article on the decision:

Pyle noted the county’s attorneys argued that prosecutors and defense attorneys not only do different work, but the county has a “legitimate interest in favoring the public’s interest in vigorously prosecuting crime over the county’s duty to provide indigent criminal defense, and that paying prosecutors more than public defenders is rationally related to that interest.”

“Although the argument is an uncomfortable one,” Pyle concluded, it is a rational one.

Poor criminal defendants weren’t entitled to court-appointed attorneys prior to 1963, and even now they are entitled to get only “reasonably effective” representation, Pyle said. As a result, government entities “could legitimately conclude that its law enforcement obligations are of a greater priority than its obligations to provide ‘effective’ assistance of counsel to indigent public defendants.”

So there you have it, folks. A federal judge saying that it’s legal for a unit of government (albeit a small one) to ensure that the scales of justice will never balance in its criminal courtrooms. Of course, just because the court-appointed defense attorneys aren’t getting paid as much as their counterparts on the prosecution doesn’t mean they won’t work just as hard or harder and maybe even do a better job than the prosecution. But unequal — lower — pay definitely puts the defense at a disadvantage and it’s hard to see how that’s fair or just, or even “rational,” for that matter. What’s rational about stacking the deck toward locking people up? Isn’t it more rational to take a simple step like equal pay to increase the odds that only those who are truly guilty get punished?

On the bright side, blogger “ACS” (who blogs at Defending Those People) left the following series of great quotations from legal luminaries suggesting that the Honorable Judge Pyle is just plain wrong. Some or all of these may soon make it into the “today’s tagline” rotation here at the imbroglio.

“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
— U.S. Supreme Court Justice Hugo Black, Griffin v. Illinois, 373 U.S. 12 (1964).

“If the motto ‘and justice for all’ becomes ‘and justice for those who can afford it’, we threaten the very underpinnings of our social contract.”
— Chief Justice Ronald George California Supreme Court, Annual “State of Judiciary” Speech, 2001

“Equal justice under law is not just a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”
— U.S. Supreme Court Justice Lewis Powell, Jr.

“Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion.”
— U.S. Supreme Court Justice Wiley Rutledge, Speech to American Bar Association, September 29, 1941

“The real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a fair hearing by independent courts to each individual…But if the individual in seeking to protect himself is without money to avail himself of such procedure, the Constitution and the procedure made inviolable by it do not practically work for the equal benefit of all. Something must be devised by which everyone, however lowly and however poor, however unable by his means to employ a lawyer and pay court costs, shall be furnished the opportunity to set fixed machinery of justice going.”
— William Howard Taft Chief Justice, U.S. Supreme Court, Preface to Smith and Bradway, LEGAL AID WORK IN THE UNITED STATES (1926) [tags]public defender, prosecution, 3rd circuit, motivation, access to justice[/tags]

4 thoughts on “How can this be just?”

  1. But they’re not “similarly situated.”

    After all, prosecutors have a gazillion more resources than court-appointed defense attorneys do. It’s only fair that we keep the disparity going.

  2. Ah. Good point. We wouuldn’t want take those obvious and relatively easy steps to try to move at least a little toward more balance, would we?

  3. …“legitimate interest in favoring the public’s interest in vigorously prosecuting crime over the county’s duty to provide indigent criminal defense, and that paying prosecutors more than public defenders is rationally related to that interest.”

    This stuff is really interesting if you think carefully about it. I suppose I’m veering away from the need for adequate defense (which I think most people would agree with), but the broader issue of what’s in the state’s interest is thorny. In particular, you often end up with really fascinating results when you ask people to consier what reasonable doubt means (e.g., how many innocent people are they willing to convict?). You often find that people have a lot of trouble lining up all of the cells of the table (false positives, false negatives) in a way that makes them feel comfortable.

  4. I’d love to see some social psych research on what “reasonable doubt” means or how many innocent people they are willing to convict to ensure their own safety. The thing is, I’m honestly afraid of what woudl happen if we put things like this up to popular vote. It seems possible that in our current climate, the majority of Americans would vote to pretty much suspend the 4th Amendment and they might just be willing to toss a lot of the 5th and 6th, as well. But I think such votes would come from ignorance — people wouldn’t say the things they do if they really understood the full implications. I think/hope.

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