Of the handful of questions that criminal defense lawyers are asked regularly, “why do I have to pay if I’m innocent?” is right up there. And it’s a good question.  Defendants don’t ask to be prosecuted.  Defendants, not to mention their families, may well be rendered destitute by the cost of defending themselves against spurious accusations.  Who needs that?

A move is afoot to shift the cost of prosecution, which includes the cost of defense, to the government.  Norm Pattis has started a blog dedicated to the idea.  Mark Bennett is one board following an idea promoted by John Kinley.  As they note, it’s not merely the cost of the lawyer, but the ancillary costs, most notably costs for experts witnesses, that can kill you.  It’s a problem we all face.

While poor defendants are given lawyers, as well as some basic level of access to experts, it’s not all it’s cracked up to be with defense lawyers carrying enormous caseloads, often far beyond the ability of any lawyer to adequately handle.  But even the defendant who can afford a lawyer is tapped beyond the ability to pay when it comes to handling the cost for all the elements that go into a good defense (not a great defense, but merely a good one).  When it reaches the point of losing a house to pay for a witness, and with no guarantee of either success or efficacy, hard choices often dictate that the kids need a roof over their head.

The problem is clarified by the asymmetry of the defense that can be mounted by the wealthy from that of everyone else.  Why should the wealthy get “more” justice than others?  Why should the non-wealthy be denied the ability to defend themselves fully?  Good questions.

But this Utopian ideal, free criminal defense for all, may not be the panacea desired.  Just as the defense provided poor people falls short of that which the wealthy purchase now, for reasons wholly outside the control of their lawyers, it smacks of a race to mediocrity for all.  Too many defendants, too much need, not enough money, would plague the system.  Price control over the costs would chase many away from the practice, from lawyers to experts who won’t work for state dictated rates.  Just because a bureaucrat thinks that $27 an hour is plenty doesn’t mean the rest of us have to go with the program.

More than that, I fear giving the government this much control over the criminal defense bar.  Some will sign up because it’s welfare for lawyers, diminishing the need for lawyers to perform their best to satisfy their client’s needs.  When clients don’t pay, lawyers don’t perform.  It happens.

If the criminal defense bar becomes dependent on the government for its livelihood, we likewise become dependent on the government for our existence.  One day, somebody gets it into their heads that they don’t like us anymore and, poof, we’re done.  One bad Supreme Court decision and Gideon is toast.  A vital private bar, beyond the reach of the government, must continue to exist if we’re going to be positioned to fight for the accused.  If our children’s next meal depends on government largesse, we have sold our independence for good.  We’re just another cog in the government wheel.

Put us on the government payroll and we work for the Man.  Do we really want to serve the Man?  Not me.  I serve my client, no one else.