In outraged voice, Noam Scheiber offers a radical proposition in the New Republic. He sets the stage with the requisite anecdotes, since an appeal to emotion is always a great way to get the juices flowing despite it being a logical fallacy, tell of how the wealthy walk away from criminal charges unscathed while the poor go to prison forever, and their little dog, too.
One anecdote, however, strikes the mark pretty well.
This maxim is illustrated perfectly by the cases of two notorious Fort Worth teenagers, who trailed five dead bodies behind them. One night in 2004, 16-year-old Eric Bradlee Miller got drunk on a bottle of vodka, stole a pickup truck at a convenience store, then plowed into a car, killing the driver. Almost ten years later, Ethan Couch, also 16, packed several friends into his father’s pickup, stole two cases of beer from a Walmart, and proceeded to scream down a local thoroughfare until he collided with a disabled vehicle, killing its driver and three passersby.
Miller’s grandfather, with whom he lived, had wanted to hire a private lawyer but couldn’t afford the expense, and so the court appointed one instead. The lawyer advised Miller to plead not guilty and take the case to trial, where he was convicted of murder and handed a 20-year sentence.
Couch’s parents hired two prominent local defense attorneys who advised him to plead guilty and wallow in contrition before the judge. Most famously, they enlisted a psychologist to testify that Couch suffered from an obscure malady known as “affluenza,” in which wealthy parents render their children blameless by failing to discipline them. Prosecutors had asked for 20 years; the judge—the same one who sentenced Miller—set Couch free. The only catch was that the teenager would have to spend part of his probation in a California rehab facility with a half-million-dollar annual tab. The judge did not explain why a lack of impulse control excuses the wealthy but not the poor.
Putting aside the affluenza claim, which was good for some lulz but otherwise a red herring, the juxtaposition of Couch and Miller drives home the point that the wealthy get better outcomes. This, Scheiber contends, is wrong. It’s hard to disagree with the general proposition.
He dismisses the solution of better funding of indigent defense as a half-measure, without much explanation. Presumably, it’s because it would never receive the level of support needed to suffice. On this shaky foundation, he offers his “crazy” idea:
The idea would be roughly as follows: in criminal cases, we decide what the accused should be able to spend to defend themselves against a given charge—securities fraud, grand theft, manslaughter, etc. No one can spend more, even if she has the money, and those who can’t afford the limit would receive a subsidy for the full amount beyond what they would have spent on their own (say, beyond a certain percentage of their annual salary or net worth). In civil cases, we decide what the plaintiff should be able to spend to pursue an award of a particular amount, or to pursue a particular kind of claim, and what the defendant should be able to spend in response. The same subsidies would apply.
Socialized law! Before you launch into the million problematic details, from what the appropriate amounts would be to whether the same limits apply to the government as the defense, Scheiber is focused on the concept at this early stage, with the numbers to be worked out later, after the idea is embraced.
Solution to the age-old problem of the best “justice” a party can afford? Rather than fund litigation publicly under the blank check approach, limit and fix the amounts that can be spent for everyone, adding to those who need it and throttling those who don’t.
There is a component to this that smacks of the voucher approach being tested in Comal County, Texas, but it’s the maximum that distinguishes Scheiber’s plan. It is a direct attack on the freedom to use one’s assets as one chooses, for the defense against criminal charges if that’s where a defendant wishes to put them. But then, Scheiber doesn’t hide that this is socialism, and so individual freedom is sacrificed on the altar of societal equity.
Yet, the big question is would it work, even if we were prepared to forsake freedom for legal Utopia? Of course it wouldn’t, and the fallacy of the proposition is readily apparent from a grossly misguided application of economics to law.
Scheiber fails to take into account that every case is different, even if the same charge is leveled and superficial comparisons seem apt. One case would benefit from massive investigation and expertise. Another is straightforward, with few facts in dispute. Lawyers may be influenced by how much they are paid in any particular case, but no matter how large the fee, they can produce no better than their skills allow, assuming the money is a sufficient motivator for them to do their best work.
There are reasons, most fairly obvious, why wealthy people do better in the system than the poor, though that isn’t always the case (remember, John Gotti, the Teflon Don, did great for a while, until he ultimately got creamed and went down for the count). It’s because the wealthy can afford the most talented counsel, provide them with the wherewithal for the bells and whistles that would otherwise be unavailable, and offer the paid-for time and attention that affords skilled lawyers the opportunity to make the best use of their assets.
If we strip away the disparities by equalizing the funding, no matter what a case requires based on its individual circumstances for a good defense, we end up with mediocrity in macroeconomic terms. Everyone has better than the worst, but no one has enough funding to do the best work.
Smarter lawyers will still think harder. More motivated lawyers will still try harder. And cases requiring more extensive collateral services will go without. Notably, Scheiber’s reliance on socialized funding presents the same problems with the lack of societal willingness to pay for indigent defense as he dismisses, but it’s not important since the scheme has no virtues otherwise to make a discussion of funding worthwhile.
Law isn’t merely an economic animal. It’s not fungible widgets, and can’t be addressed by social solutions that treat it as if it was. Despite all the talk of commoditization of law these days, it only bears upon rather trivial aspects of a legal system that ultimately has little to do with “justice,” whatever that is. Still, I can’t blame Scheiber for trying to think outside the box, even if it’s a miserable idea that solves nothing. Glorious exposition, Comrade.