The Price of Justice

Are you sure? Where did this definition come from?

Such rights come in many different varieties, they may be given by the constitution, granted by some social contract, or be natural consequences of humanity. Wherever the rights of the people come from, they have one thing in common: they cost money.

Once again, how did you know?

We're at the beginning of the essay, so we assume that what you've just expressed is the primary idea that the essay will develop. But this assertion doesn't seem to develop into anything. If it is true, the essay seems to have nowhere to go beyond. Perhaps the right step in the next draft is to bring the real central theme into view here, leaving whatever may be the case about the costs of justice to come second, rather than first.

This isn't any help unless "entitlement" is a less complex idea than "right," which it probably is not. If, in fact, it is the same thing (because a "title" is a "right"), then you haven't given a definition, only a synonym.

Once again, the reader can be expected to ask where you got this non-defining definition.

By itself, a right is nothing, an ephemeral concept that may or may not be realized. When a person argues for the right to bear arms, they are not advocating that everyone be given a gun immediately; they are arguing that people should be entitled to have a gun. When a person decides to go out and buy a gun, they are then exercising this right, and it becomes real. To further illustrate the nature of rights, imagine that our gun-enthusiast finds a police officer prohibiting entry to the gun store because he does not think people should be able to have guns. Consequently our gun-enthusiast goes the route of any American, and sues.

Why not use Hohfeld's approach, and say that a "right" is the benefit of someone else's legal duty? If you have a duty to pay me money, I have a right to receive it. If the Congress has a duty not to make laws abridging freedom of speech, then I have a right to freedom of speech free of Congressional enactments constituting abridgment. I have a right to bear arms only to the extent that government has a duty not to infringe by unreasonably limiting my carrying activities. Others may continue to do so, unless they have some other legal duty, general or specific, not to interfere.

In court, is where rights are determined.

How do we know that? If a right is the correlative of someone else's duty, it may be enforced or determined wherever that duty can be enforced or determined, which might be a court, but might be some other government institution. If we go beyond legal duties to consider other forms of duty giving rise to other forms of right, the possibility of enforcement or determination goes beyond governmental institutions, as it will if the duty is legal, but subject to, e.g. arbitration in the event of controversy.

Our gun-enthusiast must now match the best lawyer he can afford against whoever the government decides to send in support of its police officer. The judge will then decide whether or not our gun-enthusiast actually does have a right to bear arms. Once the judge has decided, and his decision has been enforced, and our gun-enthusiast is happy with his pistol, then it seems that his right to bear arms has become real. It is this process of the realization of rights that is expensive, and those that cannot pay for it often miss out. Rights belong to those who can afford them, and thus I reiterate: justice is expensive.

But you haven't shown that, you've just reiterated it. My clients don't know whether the enforcement of the legal duties of others that affect them is expensive, because they do not pay. Whether the businesses that pay me to protect my clients' rights consider it expensive to do so is uncertain; probably not, because pay they do. So whatever value they get from the enforcement of my clients' rights is worth more to them (even though the rights being enforced are not their own) than the money they are paying.

If you are indigent, what taxes are you paying that fund your prosecutor? When a wealthy person who does pay significant taxes is prosecuted, and uses her own money for her defense, not being eligible for public defense services, is the injustice worse because she is only paying for the prosecutor out of her tax money? This argument of yours seems to make no sense.

Why does it follow that the resources spent on investigating and proving beyond a reasonable doubt that a crime was committed and that the defendant committed it need to be equalized by the funds spent testing whether that burden has been successfully discharged in order for justice to be done? Have you successfully demonstrated, or seen it demonstrated somewhere you haven't mentioned here, that the criminal justice system can only achieve just outcomes when overall resources balance equally between the only prosecutorial service and one mode of defense, namely the public defense services? When a wealthy defendant far outspends the State's investment in the prosecution, is that also an injustice, to the People?

No. Only the State has a burden of production in criminal cases.

The better the lawyer, the more they cost.

How did you come to this conclusion? It seems to me patently untrue, and I know lots of lawyers. Might I be permitted to point out once again that my lawyers do not charge our clients anything? Yet I know them to be better lawyers than ones who earn far more than the salaries I pay them.

There are always exceptions, and occasionally there will be skilled lawyers that are available in the public defenders office.

What do you mean, "occasionally"? Do you mean you have checked, and almost all the lawyers who work for public defenders' services are unskilled, with "occasional" exceptions? And you have also checked, and only occasionally are ADAs equally unskilled? This is bushwah. You should meet some more lawyers on both sides, preferably in court, before opining that they're not skilled lawyers.

However, despite the superior prestige and advancement opportunities of the District Attorney’s office, they pay their attorneys very similarly to the public defender. Perhaps there is not a steep differential in skill between the attorneys at the two offices, despite there being no private sector alternative to the District Attorney’s office to lure away the lawyers with enough skill to be desireable to profitable firms and organizations.

This is wrong on both counts. Of course prosecutors (particularly "skilled" ones) can earn more money practicing elsewhere. The usual way to do that is to become a defense lawyer, oddly enough.

Luckily, although they may not have the edge in skill, they have the entire police force to help make “reasonable doubt” seem much less reasonable. Many public defenders offices rely on the defenders themselves to do the investigatory work. However, with the police department comes the forensics, the access to labs, the evidence that they discover, and the discretion of where to look for it. Many public defenders don’t even have enough time to spend thirty minutes on each case that they are assigned, it seems unlikely that they will be able to do much investigation on their own. Finally many defenses put on by public defenders have limited witnesses. They simply do not have the resources to locate tangentially relevant people that the defendant is not in contact with or that were not identified at the scene. Given the gross disparity of resources between the state defense and the state prosecution, it is hardly surprising that the majority of indigent clients unnecessarily plead guilty (for some examples of gross public defender misconduct just check the Innocence Project http://www.ip-no.org/exonoree-profile/darrin-hill).

A majority of defendants "unnecessarily" plead guilty? Are you suggesting that a majority of those pleading guilty aren't guilty? On what evidentiary basis have you come to that conclusion?

Doing routine criminal defense work? Are you claiming that there is any large law firm using its pro bono department to do routine criminal defense work? What evidence is there for such a proposition?

Thus many have implemented pro bono hours that can count towards associates’ billable hour requirement, some firms even electing to not have limits. Unfortunately, I have yet to find a law firm with available statistics on the turnover rate for attorneys that pursue “unlimited” pro bono hours to fulfill their billable requirements, however, I imagine they are not optimistic.

But what has this to do with anything? Surely you're not supposing that all the hours available for all the pro bono lawyering in even the largest of large firms would make a significant dent in the general criminal defense burden of the city in which such a firm practices? Did you do some back-of-the-envelope arithmetic on this subject you're not sharing with us to show that this could possibly be a relevant source of lawyer-time?

What does that mean? The social problem of securing sufficient resources for the legal representation of the poor is best solved by having some rich person or some rich few people want to solve it? Perhaps the way to do it is "from each according to his ability, to each according to his need"?

The basic problem in this draft was in the editing of the outline. As I've tried to show in the margins, the essay doesn't present your central idea clearly, spends time and space carelessly on subsidiary issues, and doesn't in the end close tightly on the parts of the argument that the reader needs your best thinking to find convincing. The next draft should reframe. Start from the central point you have to make. Introduce it clearly, in tight but accessible form, in a brief introduction. Develop the idea, showing what it rests on, how the reader can test for herself the strength of its support, how you deal with the most serious and productive objections. Then give a conclusion which shows the idea in its full context, and gives the reader a point of departure for further explorations of her own.