Someone Gets Forced To Pay

Frank Pasquale, whose posts at Concurring Opinions are always thought provoking, really caught me with this question:

When a health care infrastructure that has been heavily subsidized gets privatized, is there any provision for assuring that the public that paid for it actually gets some public service in return? (For one example of the subsidy: it is estimated that $500,000 to one million of the costs of educating each physician are public funds.) If 90% of doctors decided to serve the 3% of Americans with $1 million in disposable assets, leaving 10% for the other 97%, would that uncoerced market distribution be legitimate?

The point is the legitimacy of the government intervening in free markets for the general welfare, and to refute those whose argument is that they don’t like the government’s choices, so why should they be forced to accept the products of those choices.  The answer is that we all enjoy (and like) many of these choices, and can’t pick and chose. 

The flip side, per Ilya Somin at Volokh Conspiracy, is that we end up with the choices of the majority, which may prove unsatisfactory to a significant minority.  In a worst case scenario, the choices aren’t made by a majority, but by special interest groups that leave all us regular folk out of the picture. 

Interesting, but how does this apply to the law?  By demand of the Constitution (and as interpreted in Gideon), every criminal defense is entitled to a lawyer.  If he can’t afford one, then one must be provided to him.  We pay for that lawyer to be provided to that alleged criminal. 

Some (many?) may say that it’s fine if the case is “serious” (whatever that means) or if the defendant is innocent (which they are presumed to be up front), but not if we “know” they are guilty or if we don’t consider the crime or punishment to be worth the price.  Neither of these criteria pass muster under even cursory scrutiny.  Does anybody remember the tyranny of the majority

Still, many will be of the basic feeling that this is a huge waste of taxpayer money, providing lawyers to criminals.  If they didn’t do something, they wouldn’t have been arrested.  Even so, they just aren’t a group of people for whom many American’s feel much sympathy.  We have more important things to do with our tax dollars, like provide medicine to the poor (or nuclear weapons for the military), or even just keep the money in our own pockets, from whence it came.

If we put Gideon to a popular vote, I feel fairly confident that it would fail miserably.  But then, I doubt that American’s would support the Bill of Rights either.  And that’s the problem with leaving fundamental choices to the transitory whims of popularity.  The struggle for resources would result in an American that was unrecognizable. 

There are functions that the government may not do well, but still does better than any individual could.  We need the government for that.  Granted, they could do a whole lot better, but that’s not a reason to take it away from the government, but rather a reason to improve the functioning of the government in performing its job. 

Then, there are functions that the government must do simply because this is America, and it’s what we stand for.  Providing every person accused of a crime with a lawyer for his defense is one of those things.  There may well be more cost effective ways to do it, and I would certainly say that we need tighter controls on who receives these services as there are far too many defendants receiving free legal services who could afford to pay for them (and thus take away scarce dollars that would be available for those who truly need these services).  But that doesn’t change the fact that, in America, this is how we do things. 

So each of us, through our taxes, is forced to pay for the defense of the accused who are unable to afford their own lawyer.  If you don’t like being forced to pay for lawyers, consider this:  If we put more money into education, maybe we could save a bundle on criminal defense later.  And if we don’t pay for either, then we will pay the price in the loss of a fundamental component of America.  One way or the other, somebody will be forced to pay.