Leave It To The Pros

That’s professionals, not prostitutes. Not that there’s anything wrong with that, but it’s not what I meant. Doug Berman at Sentencing Law & Policy points to a new law review article by William & Mary lawprof Adam Gershowitz that raises a very interesting idea. It begins with an explanation:

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When a fatal airplane crash occurs however, we turn instead to the National Transportation Safety Board. The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter.

It then gets to its point:

It is easy to point to a similar series of mistakes by local prosecutors and defense attorneys in many death-penalty cases around the country. If we are to continue utilizing capital punishment in the United States, the death-penalty system should follow air crash model, not the car crash model. Capital cases should be handled by an elite nationwide unit of prosecutors and investigators who travel to capital murder sites the way the NTSB travels to airplane and other catastrophic crashes.

Hidden within this notion is an unspoken truth that neither lawyers nor judges care to openly acknowledge.  Many lawyers (and, as long as we’re shooting for truthfulness, many judges as well) aren’t good enough at what they do to be entrusted with another person’s life.

Sure, lawyers are admitted to practice law after taking an exam that, frankly, reflects the utter minimum base knowledge that any lawyer should possess, and we pretend that makes us good enough to screw around with the affairs of people who rely on our expertise.

But the reality is that there are a lot of lousy lawyers out there. Some are incompetent. Some are lazy. Some are burned out. Some just don’t have the chops. But we’re licensed as generalists and authorized to represent anyone who is foolish enough to blindly put their faith in us.  It’s not good enough.

There are good lawyers too. Great lawyers. Hard working, competent, zealous defenders.  Every defendant should be represented by a great lawyer, from the most trivial traffic ticket to the most serious capital case.  That clients are rarely capable of distinguishing between the good, the great and the awful is a perpetual problem that has been, and will be, debated ad nauseum, but not today and not here.  This post is about Gershowitz’s idea.

It’s a good one.  In the allocation of scarce resources, the prosecutions that will result in the most severe consequences demand the greatest attention.  There already exists a cadre of lawyers, capital qualified defenders who are given additional training so that they will know how to serve their clients well and meet the demands of their duty.  I am not one of them, I must add. I have never defended a capital case, and I have not received training to do so.  If a capital case came in my door, I would not take it. I am not qualified.

In many jurisdictions, this cadre of lawyers properly equipped to defend capital cases does not exist.  In some, the best they can hope for is that the defense lawyer stay awake during the entire trial.

The idea that there be a super group, with the expertise to provide everything necessary to assure that a defendant facing execution receives every benefit of counsel available is an excellent one.  Even though it may not be a perfect idea, as lawyers remain human and thus fallible, and as the systemic flaws that produce wrongful convictions remain entrenched and resistant to correction, there is no downside to having a group of lawyers whose competence is beyond reproach.

And the only likelihood of the NTSB approach to death penalty cases is that is that the forces of law and order, the overarching demands of perverse fiscal diligence, will unceremoniously bury the idea.  It’s that good.

This isn’t to say that by creation of a death corp of lawyers, the wrongfulness of the death penalty will miraculously slip away.  It is, and will be, wrong, no matter how hard we seek to reduce its myriad problems.  But so long as it continues to exist, it would be best to prevent as many people from wrongful conviction as possible.  Heck, that would be true of all criminal law, but let’s not get too crazy.



5 thoughts on “Leave It To The Pros

  1. Bob

    One response by prosecutors would be to move to life-without-parole to move the battlelines, but that is merely capital punishment executed more slowly. I would suggest your project cover all homicides. Another benefit of your proposal: better and efficient use of limited resources.

  2. Alex Stalker

    My understanding was that most (non southern) states already had very restrictive requirements to be a “death qualified” defense attorney. Washington State certainly does. Some attorneys are already death qualified in multiple jurisdictions where they practice.

  3. David

    I am not sure this is a great analogy. The NTSB investigates the accident to determine cause. The idea is to use these investigations to prevent future accidents. The volume of investigated airplane accidents is such that it would make little sense to have teams in each local municipality or even State. Also air travel is regulated at the federal level.

    As for enforcement, the FAA takes enforcement action in these cases and would do so independently of the NTSB findings in many cases. The FAA enforcement is mostly limited to the FARs. If an aircraft was used in the commission of a crime in addition to a violation of the FARs, I believe it would be a state or local jurisdiction as the FAA would not handle it.

    The idea of a specialized group for homicide investigation is possible but a national one would seem to be overkill as sadly each state has enough work to support there own.

    1. SHG Post author

      The analogy leaves something to be desired, but he may not have been able to come up with anything closer. Still, the point is well taken, that expertise in matters of significance above the ordinary will be a significant improvement.

  4. Wheeze the People™

    Somehow, the call to join the “Death Corps” doesn’t resonate as pleasantly as joining the Peace Corps, but maybe it’s just me . . .

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