Checking Radley Balko’s morning links, I came across a bullet point that simply said
How could I resist? It was criminal defense lawyer clickbait, and I fell for it. The link took me to The Crime Report, another of those self-important websites that claims to be “your complete criminal justice resource,” as determined by the John Jay College of Coppery and Shoe Repair. What it lacks in depth, it more than makes up for in superficiality.
The post was by Sheldon Krantz, whose description at the bottom of the post says:
Sheldon Krantz is a Distinguished Visiting Professor of Law at the University of Maryland Carey School of Law. For close to two decades, he was a litigation partner at DLA Piper, where he founded and headed New Perimeter, its award winning international pro bono affiliate. He is the author of The Legal Profession: What is Wrong and How to Fix It. Information about the book and how to purchase it are available on www.sheldonkrantz.com.
Clearly, he’s the go-to guy on indigent defense. And so I read. And as I read, I felt the brain cells dying. At first, I thought they were dying from toxic shock, but I soon realized they were committing suicide. They could take no more.
I would ask you, dear reader, to see for yourself, but I can’t do that to you. Brain cells are precious and shouldn’t be wasted so cavalierly. And so instead, I offer you bits:
The legal profession is failing to respond effectively to what is an appalling access-to-justice crisis in America.
With a few notable exceptions—such as Stephen Bright at the Southern Center for Human Rights, Jonathan Rapping at Gideon’s Promise, Virginia Sloan at the Constitution Project, Attorney General Eric Holder, and Laurie Robinson, the former Assistant Attorney General for the Office of Justice Programs—the legal profession is saying and doing little to address the sorry state of indigent defense.
Yes, we are saying and doing little, but Attorney General Eric Holder is the exception. As is former AAG Laurie Robinson, who happens to be Krantz’s wife.
The private bar has largely been missing in action in criminal defense work since federal and state public defender programs began taking hold in the 1960s. I would be surprised if more than 5%-10% take any criminal cases today.
Why is that?
Criminal practice, first of all, has an unsavory reputation within the legal profession—one it does not deserve. In addition, there is often much at stake for those charged with criminal offenses, and most get convicted.
Ouch, the pain. The stupid, it hurts so much.
Lawyers are risk-averse and do not like losing. Even skilled civil litigators are often uncomfortable with the differing rules and procedures governing criminal cases. And with the possible exception of white collar defense work,-criminal cases tend to pay less than other matters—such as corporate transactional work or products liability litigation.
It’s not like there is an entire field of law called “criminal defense” where lawyers actually represent defendants. When they aren’t doing well-paying corporate transactional work or products liability litigation, I guess. Where those “skilled civil litigators” are hiding is anybody’s guess.
[T]hose of us who have been involved know criminal defense work can be both rewarding and intellectually challenging. Requiring the government to meet its burden of proof and otherwise assuring that a criminal defendant is treated fairly is the essence of what being in a helping profession should mean.
There are other compelling reasons for the private bar to return to criminal practice. It makes no sense that at a time of such great need, there are thousands of under-employed, unemployed and unhappily employed lawyers looking for meaningful things to do.
They are joined each year by over 35,000 law students entering a depressed job market.
How gracious of Krantz to concede that slumming isn’t only for “skilled civil litigators,” but can be admirably accomplished by anyone with a law degree. Don’t you want to “return” to criminal practice and be one of Sheldon’s good guys, like the 35,000 law students who
need to earn a living to pay off their loans should defend the poor?
Law firms should also encourage their entering associates, after training, to take criminal cases. Since corporate clients often refuse to pay for new associate time, some law firms are arranging professional development and apprenticeship-type opportunities for them—including public interest agency assignments and extensive pro bono work.
Well, since we all know that the poor are just for practice, so that associates will have some experience when representing corporate clients who matter and won’t be totally incompetent, thus increasing the chances corporations will allow them to bill, it’s certainly understandable that important peer firms will task their new lawyers with learning on the backs of the indigent.
But wait, here is the kicker:
Most lawyers avoid—like the plague—taking court-assigned criminal cases, handling criminal pro bono matters, or reducing fees for prospective limited means clients.
It is time for the legal profession to play a critical role in criminal defense.
Bet you are angry with me now, for putting you through this trauma. But for those who are so monumentally clueless that they would turn to a cesspool of stupid like the Crime Report, they are wondering what is wrong with you, criminal defense lawyer, for not realizing that your career is dedicated to the plague when it really should have been spent helping corporations perfect their transactions, so you would be wealthy enough to occasionally wallow in the gutter of criminal defense to help the poor and downtrodden, despite how worthless the practice of criminal defense might be.
I thought you should know. As for Radley, you should know too.