Changing the Rules of the Justice Game

A number of years ago, Harvard Law Professor Alan Dershowitz published what he called the Rules of the Justice Game. There are 13 of them:

1.     Almost all criminal defendants are, in fact, guilty.
2.     All criminal defense lawyers, prosecutors and judges understand and believe Rule 1.
3.     It is easier to convict guilty defendants by violating the constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the constitution.
4.     Almost all police lie about whether they violated the constitution in order to convict guilty defendants.
5.     All prosecutors, judges and defense attorneys are aware of Rule 4.
6.     Many prosecutors implicitly encourage police to lie about whether they violated the constitution in order to convict guilty defendants.
7.     All judges are aware of Rule 6.
8.     Most trial judges pretend to believe police officers who they know are lying.
9.     All appellate judges are aware of Rule 8, yet many pretend to believe the trial judges who pretend to believe the police officers.
10.  Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.
11.  Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime).
12.  Rule 11 does not apply to members of organized crime, drug dealers, career criminals, or potential informants.
13.  Nobody really wants justice.

After 35 years of criminal defense practice–26 of them as a public defender–I can say that I don’t agree with all of Dershowitz’s Rules. Some offend me. And some I guess I’d characterize as “sort of right.”  Sadly though, Dershowitz’s Rules can’t be dismissed out-of-hand, and that’s a big part of the problem playing out today in poor communities and communities of color across this country. 

In my world, the public defender world, it’s hard to argue with the assertion that police officers lie about whether they violate the constitution in order to gain convictions. I don’t want to believe this, but I do because I’ve experienced it. I’ve seen it. I’ve had my nose rubbed in it. If prosecutors, judges and defense lawyers are paying any attention then they “know” that police officers violate the constitution in order to gain convictions.  Over the course of my career, I’ve seen my fair share of trial judges who pretend to believe police officers whom they know are lying. And appellate judges aren’t any better.  They pretend to believe the trial judges who are pretending to believe police officers. And perhaps most insulting, I’ve witnessed trial judges discrediting and disbelieving my clients about everything–including that their constitutional rights have been violated– even when my clients are telling the truth.

When poor defendants, and especially poor defendants of color, enter the system it takes them about a minute to realize the race is fixed. From the time they learn they won’t be released on bail because they lack the cash, to being herded into a courtroom chained to the guy next to them while wearing a throwback, oversized striped jumpsuit from the Parchman chain-gang days, to being demeaned by a court bailiff because, well, they can, to seeing their public defender’s arms so full of files he walks with a limp, my clients, public defender clients, quickly realize they’re in a horse race—and they’re riding some farm chunk. And when people of color make up around 30|PERCENT| of the country’s population, but make up 60|PERCENT| of the population in our jails in this country, there’s understandable frustration and anger. There is a palpable sense of unfairness about this criminal injustice system. And while my clients often don’t understand everything about what’s going on, they get that the system works against them and that they’re powerless to do anything about it.     

Bryan Stevenson, Founder and Executive Director of the Equal Justice Initiative in Montgomery, Alabama, says that slavery in this country hasn’t ended; it has evolved. He points out that 1 in 3 black males born in the United States is expected to go to jail or prison. How could statistics like this not create an environment of despair?  Meanwhile, presumptions against people of color perpetuate racial bias and lead to instances of police brutality. “The reality is that for decades, we humiliated people regularly,” Stevenson says. “To achieve justice, Americans need to get close to the underlying problems, change the nation’s narrative, brave some discomfort and muster hope.”

Public defenders get as close to the underlying problems as it’s possible to be. We wear them like cologne. In these troubled times, we must be agents for change in the criminal justice system. It’s imperative that we marshal our collective strength and brave even more discomfort so that our clients can find some reason for hope, some reason to believe that they can fight the system and win.

Though we get as close to the problems, the biases, the dehumanizing policies of the criminal justice system, public defenders have the reputation for being overworked, underpaid, second-rate defense attorneys, and it’s worth conceding that this reputation is earned. In many places across the country, public defenders, and the court-appointed counsel who are often mistaken for public defenders, are just engines in the machinery of our meet-and-plead system. We fail to provide zealous defense, let alone the justice, that the constitution requires and that our clients are entitled to. We need to change that.

As Sara Mayeux argues in a recent Columbia Law Review article about the legacy of Gideon, politics has played a big role in the ongoing crisis of indigent defense, but we lawyers bear some responsibility as well. “Lawyers themselves, long before Gideon, framed indigent defense as low-status, low-pay, less-than-fully- professional legal work.” And while that’s an indictment that I, and many others public defenders I know, are ashamed of, paradoxically it also gives me hope. As Mayeux writes, “If the indigent defense crisis derives not only from intransigent political indifference but also from contingent choices made by lawyers, then lawyers may retain more power than they realize to mitigate the crisis.”

I don’t know what forms this power should take, but I do know that we must be optimistic. We must fight to make claims like Dershowitz’s irrelevant and to realize the criminal justice system that our clients deserve.