One might suspect that the military justice system, being applicable to a far more discrete group than the criminal justice system in general, might be capable of having a more closely shared vision of “justice” than the rest of us. Eric L. Mayer, in his terrific blawg, Military Underdog, puts that bit of silliness to rest.
As those who read this blog know, I have no use for justice in my work as a Criminal Defense Lawyer (CDL). My goals do not involve it unless “justice” benefits my client.
Eric makes a fascinating observation about the word, “justice”, itself:
As a prosecutor, I talked a lot about “justice.” As with many in the business of representing the government, I used the word like a professional nervous tick. I used it to make others feel good about taking away a human’s freedom. I used it to sleep at night.
It’s a great word, justice. It takes the onus, the fear that surrounds a decision to imprison, or worse, another person off our backs. We didn’t do it to the defendant. It’s justice. Invocation of justice is another trick in the prosecutor’s bag. Everybody loves justice. Everybody wants justice. As long as it’s justice, anything goes, and we can all be proud of ourselves for having achieved justice.
This observation stems from an excellent example of how this very common word is invoked without common meaning, a point that I’m told needs constant reinforcement. A soldier, after completing his vacation from a tour of duty in Iraq, refused to report back for duty. He was charged with desertion.
Two levels of commanders agreed he should be charged. A military prosecutor drafted the charges, and presumably at least two levels of legal supervisors reviewed the matter for the more junior prosecutor. The charges were signed, read to the young Sergeant, and he was informed that he faced up to a year in prison and a Bad-Conduct Discharge from the Army.
On it’s face, the charges appear fairly simple and straightforward. Clearly, it passed muster with the soldier’s command, as well as the military lawyers assigned to prosecute him. With all these eyeballs, all of whom sharing the same understanding of what it means to be a soldier, to serve in Iraq, to not want to go back and to bear the consequences of desertion, certainly there was agreement that his prosecution served the end of justice.
Or maybe not.
There was a problem. Upon returning from Iraq, he discovered that his wife abandoned his two young (below the age of 7) children while she fed her drug habit. For more than 20 hours each day, the children were left alone surrounded by filth. Food and water were obtained through the children’s ingenuity and resourcefulness. They were malnourished and dehydrated. It was sad and disturbing.
The Sergeant did not know what to do. He had very little family, a mother with severe health problems, and few resources. He obtained the kids, moved them into a clean house, and filed for divorce. However, his 14 days of mid-tour leave was almost up. He asked for an extension. The command gave it to him. In the 10 extra days, he talked to friends, distant relatives, and anyone else he knew. None could care for his children, and he certainly would never trust his wife again.
He informed his commander and First Sergeant. They said they were sorry, but duty called. They told him to turn his children over to the state and deploy to his military unit in Iraq. That sounds vaguely interesting, so I’ll repeat it. They told him to turn his children over to the state and deploy to his military unit in Iraq.
Asking a father to turn his children over to the state or face charges of desertion changes things. The soldier’s military defense lawyer went up the ladder of command and told them of the soldier’s dilemma. They were appalled. The charges were withdrawn and the soldier was given an honorable hardship discharge.
Where’s the justice? The situation was no different when five military minds decided that this soldier’s conduct demanded his prosecution for desertion. Unlike our system, lawyers in the military are not permanently aligned with one side or another, being assigned to either prosecute or defend as needed, and hence without the typical bias we find in our system. They are dealing with men and women who share the same training, responsibility and circumstances. If there is ever a group that should appreciate the circumstances of others, it’s the military.
Yet the perspectives on justice in this case could not have been farther apart. One group of like-minded people believing that justice demanded prosecution, while another being appalled at the idea that a soldier must give his children away to the state.
What saddened me was that over 10 soldiers, leaders, and legal professionals (maybe more) reviewed the matter and decided to seek conviction and punishment. . . . Even more frustrating: They all believed they had the best interests of justice and the Army in mind. When told of the Sergeant’s predicament, they rolled their eyes (literally). In their mind, the dirtbag just wanted to avoid the rest of deployment.
That commenters, usually non-lawyers or lawyers who don’t practice criminal law, though unfortunately not always, rant about “justice”, it reflects a lack of grasp of the fundamental reality that there is no such common concept. One person’s “justice” is another’s outrage. If the word shares no common meaning within so discrete a group as the military, consider how disparate the understandings are in our larger society, where we rarely agree about anything.
Next time someone cries for justice, they might just get it and find out it’s not the outcome they thought it should be. Eric Mayer gets it.
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Isn’t the whole point of Eric Mayer’s anecdote that the court-martial and BCD option was less just than a hardship discharge?
I mean who are we kidding here?
Do you really, truly think that “justice” is a meaningless word, just because sometimes people disagree about what it means in a given context?
Western thought identified justice as one of the four cardinal virtues (along with prudence, temperance, and fortitude) in antiquity. None of them are easy to define either, and are often uncertain of application. Does that make them meaningless, along with virtue itself?
Plato’s Republic is arguably the seminal work of western thought. The long Socratic dialogue deals with only one question: What is Justice?
Were Plato and the rest of western tradition in the time since on a fool’s errand?
One of the purposes of the constitution, right there in the preamble, is to establish justice.
You can say you don’t care about justice but then the whole concept haunts your blog like some unwanted demi-urge, I guess. It’s an un-serious assertion.
I’ll agree only this far: in a trial itself, justice is irrelevant to what the CDL does. At that point it’s just war, of a civilized type.
Outside that context, to take just one example, if a prosecutor makes a fair plea offer you are more than entitled to take that into account in recommending it or not to your client. You can even argue its fairness to the client in an effort to persuade him to take an offer. Heck, in many instances you won’t get a fair offer unless you make a fairness argument to the prosecutor.
The difficulty of sometimes figuring out what justice is, to say nothing of attaining it, does not relieve you or anyone else of the responsibility, either as a lawyer or as a human being, to seek it where you can.
One last thing you should perhaps consider: if your position is that you have no responsibility as an attorney except to advance the interests of your client, can you blame prosecutors and judges for not trusting you and taking your views about a case seriously?
For the last time John, you don’t get it. We are not philosophers. We are advocates. Judges get it. Prosecutors get it. Criminal defense lawyers get it. I can’t help it that you don’t. I “really, truly think that ‘justice’ is a meaningless word.” Now give it a rest here.
I thought “justice” has become a modern euphamism for “inaccountability and communal control of private property.” How many politicans/activists are misusing the word under that guise?
In any case, it seems that justice – true justice – was served in that he didn’t get his one year in jail and BCD.
In defense of his chain-of-command, they may well be hearing the craziest of stories on a daily basis. If Mayer’s client didn’t provide any evidence of his situation to his command, then they had little to base a decision. Did he provide a medical report of his children? Did he provide a police report of his wife’s arrest?
There isn’t enough in Mayer’s blog to make a critical judgement of his command.
“True justice?” You mean “justice” you agree with.
And it’s important to distinguish that the info in Mayer’s post may not be sufficient for you to make “a critical judgment,” but that’s not the purpose of his writing. He’s relaying a story about a critical judgment already made by those with all the facts. He wasn’t seeking the approval or validation of readers. He was making a point.
I mean “justice” that isn’t “economic justice” or any of the other modern misuses of it.
He may not have been seeking my approval but by not giving more details of the case, he fails to make his point, too.
I thought he made his point admirably, but then, I take his story from the perspective that he knows what he’s talking about. You seem to hold the mistaken perspective that you’re owed information that satisfies you. I don’t expect that a blawg post has the capacity to provide me with every bit of informaton any person anywhere across the internet might find important. You expect to get whatever it is that you, personally, want.
Interesting that our expectations should be so different. Same as varying prespectives on justice. Getting any message out of this?
C’mon Scott. You can’t admit that, say, convicting the wrong guy and sending him to prison for something he didn’t do is unjust?
If you do, though, then you can’t maintain that “justice” is a meaningless word or idea.
I don’t “get” things that are self-contradictory, that’s true, other than getting that they are manifestly false.
I know you say you don’t like this subject, but then I wonder why you posted about it.
You have a great blog and obviously a keen mind. You should keep it open, even if just a sliver, on this.
Mayer certainly doesn’t have to prove anything to me. Neither he nor any other blawger owe me a thing. (And on that note, thanks for allowing my occasional comment.)
I gather his point is that when a prosecutor uses the word “justice” what he really means “needed punishment for the accused”.
Based on the story, it sounds as though the sergeant was treated fairly and got what he deserved. Isn’t that “justice?”
My perspective on the matter comes more from the command’s end. I’ve never rolled my eyes when hearing a sob story, nor would I consider that justice. Without knowing more about the story or at least more about Mayer, I can’t give credence what he states about the command’s sense of justice.
Like John, you’re still hung up on the word “justice” when what you mean is that we both agree that the outcome was fair. Accepting Mayer’s story as accurate, the prosecutors and his immediate command would disagree. So our justice isn’t their justice. That’s the problem and the point.
Each of us sees our own version of “justice”. Sometimes they will overlap; other times not. To us, it’s justice. To someone else, it may or may not be. It’s a word that describes nothing more than each individual’s view of a fair outcome, regardless of whether anyone else agrees.
We can easily agree that in a specific instance, your version of justice and mine align. That’s not a definition of justice, and your example, “convicting the wrong guy,” is the conclusion. It’s like asking if an injustice occured, wouldn’t it be justice to correct it? Of course. But this does nothing to define or explain it. It’s meaningless.
A better question is whether I would do everything in my power, within the law, to win the case for a terribly, horribly, completely guilty defendant who had committed a particularly heinous and awful crime. The answer is simple: You bet I would. And have. And will again.
What about the defendant who insists on his innocence, though the prosecutor is certain of his guilt, and the evidence clearly appears to bear out the prosecutor. I beat the case on a suppression motion. To my client, it’s justice. To the prosecutor, it’s a horrible injustice. My duty reduces the question to a nullity; if I can win, within the bounds of the law, I will.
Non-lawyers, and non-CDLs, don’t understand this. That’s fine. These posts aren’t here for you. Should you ever find yourself indicted, however, you may come to appreciate that justice is in the eye of the beholder.
Thanks, Scott.
Between that and your last response to John, Mayer’s point is made. And “yeah”. I’m not a CDL or even a lawyer of any stripe but I can appreciate the point.
Ah,quite so – the relativity of “justice” is underappreciated. In the natural world, it is clear that there can be no absolute concept of justice. Think of all the strange interactions between organisms: wasps that paralyze grubs and lay an egg on it so it can be eaten alive as food for the wasp larva; birds whose eggs mimic another species so they can surreptitiously place their eggs in a nest and evade the work of bringing up their offspring.
Lions, of course, feel it is unjust for the antelope to be able to run so fast and escape them, while the antelope certainly find it unjust for the lions to gang up on them, and have such vicious, flesh-ripping teeth…
Not refuel the discusion, but over at Eric Mayer’s post, there are two comments, one saying that his story is bull, that the soldier took on the responsibility to deploy and he should do so or suffer the consequences since his failure to go means some other soldier must go. Basically, screw the kids and be a man.
Another was from a Sgt. who completely understood and agreed with the decision. Both commenters believe, no doubt, that their view reflected “justice”, yet they were diametrically opposed. This is another great example of the point, as neither person is against “justice”, but their respect visions are completely different.
I have one word for you, just one word:
Plastics. I mean, Epistemology.
Am I relegated to cyber-oblivion? Is Norm Pattis?
I happen to believe that the word justice is somewhat synonymous with fairness. Perhaps prosecutors and CDL’s should invent a different word the definition of which more accurately describes the goals and activities of what transpires in the criminal courtroom.
Further, addressing JH’s irrelevant comment, there is no justice in the natural world. The concept can’t be applied to less than human animals and when attempting to make any position clearer about what constitutes justice or of the ambiguity of the concept of justice I perceive it as foolish to even refer to what occurs in the less than human animal world .