Making Gideon Cry, A Public Defender’s Confession

A pitch was sent out to the blawgosphere yesterday from a flack for the Washington Post about an op-ed by public defender, Tina Peng.

I’m a public defender. It’s impossible for me to do a good job representing my clients.

Yeah. And Generalissimo Francisco Franco is still dead. Got it. Thanks for sharing.

It’s not that anyone who gives a damn about the plight of indigent defense minds another op-ed about the inadequacy of funding.  It’s worthy of repeating, and the inadequacy impacts defendants and indigent defenders every day, day after day, because we may have screamed about the problem but it hasn’t been fixed. Not even close.

On the other hand, it would be more easily accepted if it wasn’t promoted as an epiphany, an issue no one ever thought to raise before, a lone cry in the woods of a horror that society has failed to recognize. But this is in the Washington Post, so it must be newsworthy. Cool.

But Peng’s op-ed eventually gets to a different place. While her plea for funding, despite her failure to acknowledge that this isn’t exactly a new concept, wouldn’t be worth a read for those who know, and care, about the problem, there was reason to read further down.

Because we don’t have enough lawyers on staff, the week I passed the bar in 2013, I began representing people facing mandatory life sentences on felony charges. In Louisiana, people with as few as two prior nonviolent felony convictions can face mandatory life imprisonment on charges as minor as possession of a syringe containing heroin residue or, until recently, possession of a single joint. Defendants who cannot afford to make bond can sit in jail for 60 days while the district attorney decides whether to arraign them. An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.

Wait, what? Did you just announce in a major newspaper that you have engaged in mass ineffective assistance of counsel, knowingly, willfully, deliberately?  Did you just tell the world that you are personally complicit in the destruction of lives by making the individual choice to fail to competently, no less zealously, represent your clients?

Oh my.

Lack of funding is a nearly universal problem for indigent defense. No, it’s not just you.  We get it. We always have. We got it before law school was a gleam in your mother’s eye.  And it’s very nice that you wanted to be a public defender and forgo the big bucks that people seem to think the rest of your classmates are making while you serve a higher cause. Good on you.

But get off that white horse.  The volume, the pressure, the burden and the allocation of scarce resources do not inherently force you to be incompetent, or complicit in the destruction of lives.  You have a choice. You have a duty.  You don’t get to forsake that duty because things are really, really hard.

But that’s impossible?  Too many defendants, too many needs, too many demands on time and resources?  Yes, for you and every other public defender. Again, we all understand the excuses, but you don’t seem to grasp that they’re excuses, not justifications.  You don’t get to reinterpret the duty of a lawyer because you’ve chosen a hard life.

What that means is that you can’t “represent” them all. If you can’t represent someone competently, then you have a duty to not represent them.

This means there will be people left unrepresented. Damn straight. That’s exactly what it should mean, that society has failed to satisfy the requirements of Gideon, and that the cost of this failure is unrepresented indigent defendants, a society that fails to fulfill its obligation to meet constitutional demands.  People will suffer. Innocent and guilty alike will suffer.

Nothing will change while public defenders cover the gap by pleading out people they don’t know to crimes they know nothing about. You become a willing cog in the wheel that grinds up people’s lives and creates the outward appearance that all is going pretty well. After all, look at all the cases completed, defendants pleading guilty with the assistance of counsel. Your counsel.

You allowed yourself to be used by the system to pretend that these defendants were represented, when all they got was a warm body.  You aren’t a lawyer, but the person who shoves bodies into the meat grinder.

If you can’t provide defendants with effective representation, then what the hell do you think you’re accomplishing?  Covering hundreds of cases beyond your capacity isn’t helping the indigent. It’s concealing the failure of indigent defense, the failure to fund, staff, provide effective representation.

This is part of the problem, that to the outside, people who fail to do their job make it appear that Gideon is kinda working.

Sure, no one who gives a damn wants to see defendants standing before a court with no lawyer next to them. We all get it. But as long as you stand in the spot meant for a lawyer, and yet fail to be a lawyer, you are giving the impression that defendants are receiving their constitutional right to effective assistance of counsel. And you not only admit it, but don’t grasp why this isn’t you doing the best you can under very hard circumstances.

Sorry to make you the poster child for this point, but when you write an op-ed for a major newspaper that includes a confession of sheer incompetence, what did you expect?

45 thoughts on “Making Gideon Cry, A Public Defender’s Confession

  1. Alice Harris

    I read the op-ed in its entirety. I’m a public defender in Florida and have done this job for over a dozen years. I love my job.
    I had a similar reaction to the op-ed. Acknowledging that my caseload may be smaller than the writer’s and her situation may be more difficult, I’m appalled to read that her client was unjustly in jail for weeks because she didn’t take the time to see him, learn of the mistake, and fix it.
    I see what happens in my office. Too much goofing off, too much time spent whining about clients who don’t show up for appointments, the miserable drive to the dirty jail, the inadequate visitation rooms, the defendants who are unappreciative, the crush of the caseload. Sorry folks. All that comes with the territory.
    It is possible to do this job — not perfectly, maybe, but very well. Several lawyers I respect, including the phenomenal Gerry Spence, have told me I shouldn’t be a part of this system, that I’m sanctioning the farce that is the public defender system and that the more ethical thing is not to participate in a bad system. I’ve seriously considered their counsel. Still, I’m here. If I’m not, someone will be. And I know I’m doing this job well.
    I don’t “meet ’em and plea ’em.” I read the file when it hits my in-basket, see jailed clients early, read and answer my “jail mail,” return phone calls, investigate cases, find witnesses, visit crime scenes, and take cases to trial. I do the job. How? By working diligently every day, folks. I don’t know the office gossip. I’m too busy.

    1. SHG Post author

      The line for me is when a PD stops doing the job and becomes part of the machine. As for the Gerry view, he tends to be a bit melodramatic about it all. Most PDs I know try, and do a pretty good job under the circumstances. But they don’t lie to themselves, blow the representation and still believe they’re heroes on white horses.

      Any PDs who finds themselves more problem than solution is doing it wrong. There’s no excuse for that.

  2. Speedy

    The author, as a junior PD, would not have had the ability to refuse to take cases on her own. Her options were to do the best she could with what she had, or quit. If your answer to that dilemma is “Then she should have quit;” fine, that’s a hard answer but an honest one.

    That said–does quitting serve her clients? Leaving them without counsel, or pushing the cases off on to her colleagues, would leave the client even worse off. Every PD has been in this situation, and every PD worth his or her salt thinks, consciously or subconsciously, “This is intolerable, but it’s better that *I* am here with my client instead of whatever stiff they would get to replace me.”

    Her office as a whole might have been able to turn away cases, but the story of what happened when my former employer tried this has been self-redacted, unless you want to hear it.

    1. SHG Post author

      Bullshit. No one, but no one, forces a lawyer to be inadequate. Nor is the “better to be here and incompetent” argument valid. Many PDs have stood up to this pressure and refused to be party to the destruction of client’s lives. Yours is a complete rationalization of internal and personal failure, and it’s bullshit.

      Don’t have the balls to stand up and fight the pressure to be incompetent, all the while making excuses to justify why you’re party to harm, then quit. If not, refuse to play the game, do the job right, and let the PD fire you for being a real lawyer if that’s what he/she wants to do. But don’t cooperate in the lie. If it means the office crashes and burns because PDs refuse to pave the path to IAC and prison, so be it.

      Edit: About that “stiff” that would replace you? If you’re incompetent, you are that stiff. You just don’t want to admit it.

      1. Speedy

        Except competence vs. incompetence isn’t always a binary proposition–it’s partially a function of caseload. If I had 80 open cases, I could do a competent job on all of them. At 120, I started feeling the strain but I could still manage. At 150, running flat-out and working 80 hours a week, I could barely keep it together. At 180, I started missing stuff. At 300, fuhgeddaboudit. So yeah, under those circumstances, I might have been the stiff–and so would you, and so would Clarence Darrow, even if he had a neural connection to Westlaw and an Adderall pump. At some point, there just aren’t enough hours in the day.

        Your solution is to quit, or get fired, so as “not to participate in the lie”–a harsh answer, but I respect it. But individually speaking, quitting might improve one’s moral position but it does nothing to serve the client. And (assuming I did a good job under normal circumstances), I was a better option than the hypothetical stiff. “Crashing and burning the office” would only work if PDs acted collectively.

        1. SHG Post author

          I think you’re confusing the binary “competent/incompetent” with the cause of the incompetence. Some lawyers are just incompetent, and some are situationally incompetent. To the defendant whose life got burned, this is not a relevant distinction. He’s screwed either way.

          He is constitutionally entitled to effective assistance of counsel, without regard to whether his PD has 20 files or 2000.

          Every lawyer (and yes, even PDs) are ethically obligated to provide effective assistance of counsel. There is no exception for lawyers who have too much work. There are plenty of rationalizations to circumvent this fundamental detail, but they don’t matter. A PD, any PD, every PD, is constrained to provide effective assistance. He doesn’t get to meet and plead just because he’s overburdened than the “stiff” who sucks because he’s just an incompetent clown.

          It’s a duty. There is nothing less that’s acceptable under any circumstances.

          1. SHG Post author

            The reaction I’ve gotten from PDs is that they’re outraged by Peng’s op-ed, which makes them out to be everything they’ve fought to not be, the meet and plead public pretenders. A constant fight is for the respect of their clients, and in one op-ed, Peng has done as much as possible to undermine this effort.

  3. Speedy

    Yes–effective representation is a duty. Continuing to represent people under impossible circumstances doesn’t fulfill that duty. Neither does quitting or getting fired. The problem, at least at the individual PD’s level, is insoluble.

    1. SHG Post author

      Did you get tired of using the reply button?

      No, quitting or getting fired doesn’t solve the problem of indigent defendants not receiving effective representation. But it does solve the problem of a PD engaging in the unethical conduct of providing ineffective representation. Therein lies the duty. A PD can’t deliver IAC and forgive himself his trespasses because there were just too many defendants to do it right.

      As for what becomes of the rest of the indigent defendants that the PD can’t represent, that’s where the burdens falls back to society to deliver the constitutionally mandated representation. Until this happens, and society is forced to put up or shut up, the problem will continue with unethical PDs covering the failure with their ineffective representation. Everybody will be happy, except the defendants doing life for jaywalking.

      1. Speedy

        My mistake about the reply button.

        As for not participating in an unethical system–understood. But (and I’m asking honestly, not as a rhetorical question) is there also a duty not to make things worse for the client by quitting?

        It’s not about forgiving PD’s their trespasses–but, damn, it would be nice if someone would deliver us from evil.

        1. SHG Post author

          “…is there also a duty not to make things worse for the client by quitting?”

          First, the PD doesn’t make things worse. The failure of society to put up the money to fulfill the backend constitutional mandate of effective representation makes things worse. Second, PDs who acquiesce in this failure make things worse. Third, when a PD is no better than the “stiff,” he isn’t helping; he’s just as bad. Fourth, the defendant can’t even obtain relief for failure to be afforded counsel, because the PD stood next to him, telling the guy whose name he doesn’t know to cop out. On paper, it looks perfect.

          So the PD is already complicit in “making things worse,” but refuses to acknowledge it and willingly aids in its cover-up.

          1. Speedy

            “So the PD is already complicit in “making things worse,” but refuses to acknowledge it and willingly aids in its cover-up.”

            We acknowledged it, and it wasn’t willing, except to the extent that we didn’t quit. And there’s no cover-up…any PD will tell you about it if you ask. Or if you don’t ask. But no excuses–the client doesn’t care about the distinction and is still getting screwed.

            So how do you distinguish between PDs quitting en masse in order to crash the system and force the necessary reforms, versus pushing every case to a jury trial to crash the system and force the necessary reforms?

            1. SHG Post author

              I think you’ve missed the nuance of my explanation, so repeating myself wouldn’t serve any purpose. I realize this is a bitter issue for PDs, who feel as if they’ve been plopped down in the middle of an impossible situation, not of their own making, and are left without a viable option.

              I’m going to leave it with this: PDs aren’t just “institutional” defenders, but individual lawyers, each of whom carries an individual duty. That duty is higher than the “institutional” demand to handle the numbers. How a PD chooses to deal with this numbers is a choice he or she has to make in light of this individual duty, but there is never an excuse that relieves them of their individual duty to be an ethical, competent lawyer providing effective representation to their clients.

              Acknowledging this in the abstract isn’t the same as dealing with it in trenches. You have no option but to provide effective representation to the guy standing next to you. That there are other guys in line behind him who you will never reach if you do is the price of being a lawyer. Nobody said being a lawyer was easy, but nobody said being an overburdened PD relieves you of the duty to be a lawyer.

  4. DavidM

    I think you missed the point of the op-ed. Ms. Peng is not just admitting to her own malpractice; she’s claiming that everyone she works with is also guilty, and that the system that relies on on her willingness to commit malpractice is also guilty.

    Should she receive some form of professional discipline? Perhaps. But what of the defendant, sitting in jail because he can’t make bail, subject to filing deadlines to quash the results of an improper search, or needing an investigator to canvass for surveillance?

    Better still, what of the new defendant next week, or next month, or next year? Only by publishing the story, in the Washington Post no less, and accepting the risk of professional discipline, does the story get heard.

    1. David M.

      Yes. This!

      I agree with myself, indigent defendants will see no relief if the WaPo doesn’t publish op-eds to a regular schedule. The war’s half won. We’re doing a great job.

      Furthermore, I did a great job of reading Mr. Greenfield’s post. What, we must ask ourselves, of the defendant? Clearly, if I, as a public defender, am incapable of doing my job properly but do it anyway, I’m doing what’s best for the defendant. If everyone could see the defendant, having to bring his fists to a gunfight, it’d be terribly embarrassing. For the defendant.

      Instead, hold hands tightly, squint and smile. Almost as good as an effective defense and sustainable to boot.

      1. DavidM

        Wow, smell that? Sarcasm?

        While “the system” declares that each defendant is entitled to a perfectly competent lawyer, participants in “the system” know that this rarely occurs. It’s not a choice between just doing her best with a crappy system, it’s also a matter of yelling loudly while doing her best under the circumstances that “the system” does not allow her best.

        Ms. Peng found a middle ground. I might not agree with it. Mr. Greenfield definitely does not. But it’s the only middle ground that might help a defendant in the future by taking a first step toward changing “they system” today.

          1. DavidM

            So what do you recommend in the meantime? While you appear to be in love with the binary choice the real world doesn’t always have just a black and white choice. Doing your best under the circumstances is sometimes the only choice. Doing so while loudly complaining in a public forum like the Post takes courage.

            1. SHG Post author

              I’ve already had this discussion with Speedy. You’re not such a special snowflake that you get to have it again.

              As for it taking courage, she’s about the millionth person to tell the sad story of underfunded public defense. but I would seriously hesitate calling it courage to announce that a PD put people she didn’t know in prison because she just couldn’t provide competent counsel. There’s another word for that.

              Your view is nothing new. Many rationalize their failure just like you. That you lack the personal integrity to grasp the problem isn’t a reflection on the problems confronting public defense, but your personal lack of ethics. The duty doesn’t apply to everyone else, except special snowflakes like you because it’s so hard. So when people bitch about public pretenders, they’re talking about you. You are what defendants despise in public defense. You are what other PD’s despise, because you disgrace the job and demean their efforts. You are as bad as perjuring cop or a Brady hiding prosecutor. You are a necessary cog in convictions. Get it now?

              If you can’t be a criminal defense lawyer by providing effective representation, then go work for the prosecution. At least then you’ll get paid to convict people, which you’re doing for them for free now.

  5. DavidM

    You’re still not grasping the concept, but I guess when you close your mind and resort to namecalling rather than advocacy you weren’t really providing effective assistance anyway. (Blue Pill? Really? And “snowflake?” Made me laugh out loud with that one.) I get it; it’s your blog and civil discourse was not in your education and therefore not in your mindset. But if you’re going to be both close minded and rude, it might be time to just chuck it all in for the public good.)

    I’m not rationalizing failure, I’m asking you for a solution to the entire problem that does not involve writing off those defendants sitting in jail, unable to make bail, while deadlines come and go, because the PD refused the assignment. There are other solutions, but perhaps you just aren’t creative enough:

    – the entire PD office resigns in one day, throwing an entire courthouse into turmoil.
    – the entire office slows the system by demanding, e.g., reading of the charges before a plea, refusing to stipulate to uncontested facts, making the prosecution prove identify of the defendant, etc.

    The problem with those solutions is that they require supervisors with more of an interest in their public benefit retirement system then the justice system to cooperate. They also require unanimity of other employees who have stopped caring about their professional obligations anyway.

    1. SHG Post author

      So you can’t be bothered to use the reply button, didn’t read the discussion above with Speedy, and can’t bear not to stamp your feet like a whiny brat.

      We’ve had civil discussion of this subject. You don’t get to demand it all over again. It’s got nothing to do with this being my blog; it’s right here, in these very comments, and only you can’t be bothered to look.

      Sorry, David, I didn’t make you the dumbass. You did.

      Your boss isn’t helping you? Your co-workers don’t give a shit? You can’t fulfill your ethical duty to provide effective representation? Than quit. Being that scumbag who meets and pleads is not an ethical option. This isn’t hard to grasp. Even for you. And what becomes of all those poor indigent defendants if you quit? Nothing worse than having you defend them incompetently.

      Get off your white horse. If you can’t defend them, you’re no hero. You’re just another kid making up bullshit excuses so you don’t have to come to grips with the fact that you are the problem.

    2. Myles

      David,

      Scott’s grasping the point. I’m grasping the point. We’re all grasping the point. The point that hasn’t gotten through your skull yet is that many people here either are or were PDs. We get it.

      But what you don’t get yet (and aren’t hearing at all because you really are a special snowflake) is that being incompetent isn’t an option. When Peng admitted in her op-ed that she was a colosal failure, it hurt every PD reading it. Sure, we know what it’s like to be overworked, but we also know that every client, every single fucking client, is a real person, not just a file to clear off your desk.

      Don’t lecture us on how the real world works. I assume from the things you’ve written that your a kid lawyer, maybe a few years in, and lack the maturity to shut up and learn. I did ten years as a PD, and there were days I didn’t do as well as I should have. And I am ashamed of myself for that, and ashamed of the lies I told myself to rationalize it. The same lies you are telling yourself now.

      There’s no easy answer. Grow the fuck up and either be a lawyer or get out. You’re not entitled to a job. You’re not entitled to your own special brand of ethics. And you aren’t entitled to do shit work and pretend you’re a lawyer.

      If you’re a PD, quit before you hurt anyone else.

      1. SHG Post author

        I’ve really had enough of this whining entitlement. Maybe we should build him a statue for all the people he copped out because he was so overburdened.

      2. DavidM

        For Scott, and first of all, there is no reply button after a few replies to replies have been made. Look up at your post at 4:10 pm, no reply button.

        Second, I read the entirety of Ms. Peng’s post (and actually thought about it for a while) as well as your response here. In my opinion, you missed the point of her anecdotes.

        Third, I’m not defending unethical conduct; I agree that if she can’t do the job she shouldn’t take it. But I’m also not willing to leave the subject alone just because a few guys here get their rocks off from calling others incompetent and throwing around “snowflake” like it’s some kind of terrible insult that should enrage my response. The bar for her providing competent representation is actually very low, and assuming that one of you guys here with the courage to anonymously contend that she should be punished also have the courage to publicly report her to the LA Bar. (My state has no such requirement; almost all states do. Or is your ethics limited to your own version of competent representation?)

        For Myles, I’m actually in my 50’s, and been practicing longer then Ms. Peng has been alive. I “grew the fuck up” a long time ago. Now, when will the folks here realize they are cogs in a system that denies fundamental rights every day? Coming to a web site to pat yourselves on the back for being “competent” when someone else gives you an inference that the system encourages her to not be ignores that reality. She’s doing something about, at personal risk. You’re doing nothing with the same impact; that makes you the unethical coward. You are willing to point fingers at others, but as soon as she quits another lawyer with two weeks of experience will be defending life-without-parole cases.

        Just because you’ve heard it before and therefore are tired of the message doesn’t mean the message shouldn’t be repeated.

        1. SHG Post author

          Well, that makes one of you. And you would do well to learn how reply buttons work, and not to call others “anonymous cowards” when you’ve only given DavidM. You wouldn’t want to be a hypocrite as well as a dumbass.

          As for your being in your 50s, you don’t get to play that game. People using ‘nym’s are nothing. Not a lawyer. Not 50. They are nothing more than what their content suggest. And lastly, nobody called for punishing Peng. So you blew that too.

          It’s fine that you don’t care if a few guys throw rocks at you. It’s not fine that you’re a dumbass all by yourself. Not interested in your defending your butthurt anymore. Move on.

        2. Sgt. Schultz

          Bet the guy she pled guilty to a felony right after she met him would give anything for a PD with 2 weeks experience who wasn’t willing to sell him out. I have never seen anyone argue so strenuously in favor of incompetence. And you’re still totally clueless.

            1. DavidM

              I see how this works, you have to be right; even if I call you out when you’re wrong you’ll just moderate that post right out of existence here.

              I can say over and over that I’m not defending incompetence but just pointing out an important story. I can call out your ethics for contending that Ms. Peng admitted incompetence but you have no desire that she receive professional discipline.

              You’re burned out with complaints about PD work requirements? Fine, then shut up and move on. Millions of people don’t here those complaints, and have no idea until they are arrested (sometimes for regulatory felonies) and get to talk to their lawyer for an hour or less before their preliminary hearing.

              So just keep raking in that $50,000 retainer. You’re why people hate lawyers; it’s a shame you’re so insulated from the rest of the world that you just won’t see it.

            2. SHG Post author

              Sigh. I’ve posted five comments from you. They were long. They were boring. But I posted them. When it became clear to me that you had nothing to add that was of interest to anyone but you, I ended the discussion. You had far more opportunity than needed to make your case.

              I tolerated your verbosity, your flagrant hypocrisy calling others anon cowards while you were anon but had an “excuse,” your cluelessness (yes, nobody got your brilliant point, and everybody else was clueless, especially me. We got it), and your narcissism. But still, you demand more, because you’re special.

              The only person fascinated by what you had to say was you. If you’re so right, then start your own blog, impress the hell out of the world. You were smart not to use your name. You’ve reduced yourself to a joke. But you feel that you’re right and we’re wrong. Got it.

              And still, this is my blog, not yours, and you don’t get to demand as much time and space as you like. Because you’re really not special. So I get to have the last word at my blog, and you don’t. Sucks to be you. Bye.

            3. Sgt. Schultz

              Like every other three year old who shows up here, stamps his feet, whines that nobody understands him and it’s his right to pontificate over and over until he gets validation.

              Because it’s just not possible in a flaming asshole’s mind that everybody gets him, and thinks he’s a moron. So he just demands his special entitlement to keep on stamping his feet.

              Why won’t everybody acknowledge how smart I am, how right I am, how SPECIAL I AM!!! And Scott is horrible if he doesn’t let me have everything I want because I’m entitled!!! As Scott says, got it.

            4. Suzie

              Scott’s hardly closed minded. I’ve persuaded him that he was mistaken. All it takes is sound reasoning and not behaving like an asshole. You failed both.

              I’m a PD, and I would have banned you for being a total asshole.

            5. DavidM

              Thanks for piling on Suzie, it’s always great to know there’s someone waiting in the wings to also resort to namecalling instead of addressing the issue.

              I can say, a hundred times, that I’m not defending IAC; you pricks (and apparently pussies now too), however, fail to realize that the WaPo piece is a public policy critique. You’ve heard it before and don’t give a damn about the individual defendant anymore. Fine.

    3. Sgt. Schultz

      Uh oh. Sad butthurt PD, nobody understands his deep, terrible problem!!!

      Yes, David. We all understand the problem. We get it. Everyone but you gets it.

  6. John Echols

    SHG: “As for it taking courage, she’s about the millionth person to tell the sad story of underfunded public defense.”

    This.

    Where are the public defenders who are refusing to perform their feed-the-meat-grider role?

    If none, point made.

  7. Marc R

    Plenty of PDs seem to do a great job here. I see them getting similar pleas as private attorneys and some with great acquittal percentages at trial. While the case load is ridiculously large the PD also have one another to turn to, excellent motion and brief banks, and some of the best trial lawyers on staff. I imagine any trial position is stressful, but plenty handle it, and nobody is forcing you to not resign. I’d feel sick if my family member were one of these unknown clients plead to a felony out of convenience. A large case load doesn’t excuse negligent representation.

  8. losingtrader

    Other side of the coin , as to the “complicit in the system” argument , is this really any different than a judge who administers a mandatory sentence, then whines in print, or maybe even visits a jail cell for a few minutes and reports on the horror of the thought of spending the years in that cell he’s “forced” to impose. Isn’t the same answer of “get out” appropriate?
    I can only recall a few judges quitting over sentencing. It’s a mighty nice job to have, with a much better pension than a lifetime PD would receive. It’s easy for the PD and the judge to complain, but it’s the PD who is in deep shit for making these admissions

    1. SHG Post author

      It’s different. A judge can do a lot of good (or bad), but the constraint of following the law is one of the inherent limits of the job. The analogy doesn’t follow. IAC is not a job requirement.

      1. losingtrader

        I buy inadequate counsel is different– I did say it’s the other side of the coin.
        Part of the argument was complicity in a flawed system. The judge accepted the job, but doesn’t agree with the results he likely knew he would have to impose when he was appointed .
        The judge can soothe his feelings knowing if he quits, the same sentence will be imposed by someone else.
        Wrong coin?

        1. SHG Post author

          A three dollar bill. This is why I noted that a judge can do much good, even if part of her duty is to apply law with which she disagrees. The judge can work to change that law. There is nothing in your analogy that works.

          Now, let’s assume you never made the bad analogy and are asking a totally separate question (which, I note, is similarly unrelated to this post, thus making it entirely off-topic) about whether it’s problematic for judges to assume the bench knowing that they would be required to apply law with which they strongly disagreed.

          First, the mistake in your assumption. What makes you think many lawyers choose not to be judges for this very reason? Maybe the vast majority of potential judges beg off because they don’t want to be complicit in a system then believe to be wrong. Didn’t consider that, eh? Don’t think it’s true? Why not? You know a thousand lawyers who were asked if they wanted to be judges and said no? I don’t think so.

          Second, a trade-off between positive and negative, with the potential to turn the negative into a positive with the authority granted by the position, is a goal worthy of effort. It may not be for everyone, and it may not have a good likelihood of happening, but then the good a judge can do within a troubled system may be worth the effort and frustration of the bad.

          Third, your picking a piece of the argument (“complicity in a flawed system”) doesn’t work, which is why your analogy was so poor. One strives to improve the flawed system by changing it from within, while the other is a cause of the system failing and prevents both its improvement or its total collapse so that the system is forced to improve.

          So yeah, it was a bad analogy and even worse question, and look at all my time wasted responding to your stupid question. This is one of the reasons why I ponder banning non-lawyers from commenting. Responding to stupid points isn’t nearly as much fun for me as it is for the guy who thinks he’s got a brilliant point to make, but really doesn’t.

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