Suppressed Premises in the Rule of Law Argument for Defending the Guilty?
posted by Paul Gowder
Hi everyone. It’s good to be here. For my inaugural con-op post (and possibly several others), I’d like to be selfish and take advantage of the epistemic advantages of diversity to toss a loosely-formed thought around, in order to sharpen my own knowledge by seeing what you all have to say about it.
Next semester, I’m teaching professional responsibility for the second time. And this time around, I plan to structure the course around a handful of the Standard Big Questions(TM) that plague legal ethics. And, of course, one of the Standard-est and Biggest is “how do lawyers justify representing criminals whom the lawyers know to be guilty?.” This question becomes especially salient when the crime in question is particularly evil, and if the lawyer succeeds, the criminal may pose a further danger to society: imagine the lawyer who defends a confessed terrorist or child molester. And so I’ve been thinking about it a bit.
One of the Big Standard Answers to the Big Standard Question is that lawyers may (indeed, ought to) defend the guilty in order to defend the rule of law. On this argument, without the work of lawyers defending even those who are known to be guilty, the government may have an incentive to shirk on its constitutional duties to punish only the guilty. Moreover, by forcing the government to comply with constraints like those embedded in the Fourth and Fifth Amendments even to punish the guilty, lawyers help preserve those rights for us all. For example, if the government knew that it could get away with warrantless searches, because nobody would wield the exclusionary rule in defense of the guilty, then it would have an incentive to illegally search everyone in order to catch and prosecute the guilty.
From the standpoint of lawyers as a class, this argument seems pretty good. But it breaks down when we stop asking “why should lawyers in general defend the guilty?” and start asking “why should I, a single lawyer, represent this particular guilty defendant?” For the rule of law pretty clearly can be preserved with something less than 100% of the guilty getting a defense. If every lawyer in the world decides that Khalid Sheikh Mohammed is so revolting that he’s not entitled to a defense, the rule of law isn’t going to collapse, so long as lawyers generally are still willing to put up a vigorous defense of the guilty in general. Moreover, even if any individual lawyer is unwilling to represent KSM, some other lawyer may still be willing to do so.
For representing the guilty, then, we have a double free-rider problem. Representation of the guilty is a public good, but each individual lawyer has an incentive to shirk KSM’s representation both because it may not be necessary to represent that particular client in order to get the rule of law, and because it may not be necessary for any given lawyer to represent him in order to bring it about that he is represented. Strikingly, this isn’t just your basic garden-variety self-interested free-rider problem; it’s what we might call a moral free rider problem. (I have an old conference paper floating around on this class of problem.) For a consequentialist, representing KSM comes at a moral cost: to the best of our knowledge, he’s patently guilty as well as incredibly dangerous, and doing anything that, however slightly, raises the probability that he will go free, represents a moral evil that the lawyer is obliged to avoid unless doing so is actually necessary to avoid the greater evil of the failure of the rule of law. It seems to follow that each individual lawyer is morally obliged not to defend KSM.
There are a variety of strategies we might take to avoid this problem. Briefly, at least two come to mind. 1) We can be rule-consequentialists rather than act-consequentialists: lawyers ought to follow the best rule, where that rule may be “always defend the guilty.” 2) We can add uncertainty about how much representation of the guilty is needed: if we don’t know how many guilty people can go unrepresented before the rule of law collapses, there may be a reason to defend each individual guilty person in virtue of the risk that this is the tipping-point case where it all goes down the drain.
If not one of those two ideas, it seems to me that we must have something to span the gap between the collective reason lawyers have to defend the guilty and any individual lawyer deciding whether to defend any individual guilty person. But what do you think? (Surely someone has written on this…)