> One way to make it more fair is to make it cheaper, and [one] way to do that is to reduce its complexity.
You've made a good case against that solution. But I remain far from convinced that there's not another solution, like having the lawyers of both sides be salaried employees of the state.
There's a lot going on here. Partly, I think we're conflating having the best possible defense with having a fair trial. The latter probably does not require the former and, in any case, it is probably not possible under any reasonable system to provide the former for everyone. I think many defendants do receive fair trials, whether they can afford representation or not--though this does not mean their representation could not have been better.
In fact, today, for poor defendants, the lawyers on both side are already salaried state employees. Moreover, federal defenders and some state public defenders (particularly in big cities) are actually very good. Believe it or not, these are highly coveted jobs, despite the dismal pay and stressful work. But that doesn't mean it isn't still possible to go hire an even better lawyer. And, when your life is on the line, this is just what people will do if they can possibly afford it.
This will result in disparities, but it's unclear how we could prevent this short of preventing people from hiring private attorneys. This seems like a non-starter, so it's probably better to focus our resources on making sure everyone's representation is adequate, than on making sure everyone's representation is the same.
But the other problem, of course, is that, although many public defenders are actually extremely gifted, their offices don't receive nearly enough funding. This means that, although it is possible for a given defendant to receive good representation (and some do), in the aggregate public defenders offices simply cannot properly do all the work that needs to be done. This is, in theory, an easy problem to solve, but unfortunately, there is little public interest in solving it. Prosecuting criminals is popular. Defending them is not. (Of course, the whole point is that not all defendants are criminals, and we need good lawyers to help the system distinguish between the two. But that's not the message that sticks with people, for some reason.)
so, it sounds like you're saying we could get a "pretty good" or maybe "good enough" solution with nothing more complicated than a drastic bump in funding to public defenders' offices?
I think that's probably right. The system wouldn't be perfect (in particular, you'd still have the problematic specter of the rich hiring whole teams of expert attorneys, giving rise to the suggestion raised here that the rich can, to some degree, buy the justice system), but I think it would be adequate so long as the defendant's resources were typically comparable to the resources brought to bear by the prosecution in a particular case. (Bearing in mind that, for run of the mill cases, the prosecution will not exactly throw every dollar they have at it either.)
This hints at some sort of rule that requires budget parity between the government's expenditure on the prosecution and on the defense in a given case, but I really haven't thought such an idea through sufficiently to suggest it as a solution.
It's also worth considering that, as with many other things, diminishing returns kick in at some point in one's legal defense. The objective reality of one's guilt or innocence does also, of course, play a role. Even a team of expert attorneys will have a hard time securing an acquittal with bad enough facts. So concerns about "buying justice," while real and important, are also often a bit hyperbolic.
You want to make it fair by prohibiting people from paying for a better defense? So because some people can't afford private lawyers, an unfortunate state of affairs that public defenders exist to remedy, private lawyers should just be banned outright?
The independent legal profession is a cornerstone of our free society. My lawyer shouldn't have to be on the payroll of the people trying to imprison me. Lawyers try to do a good job because it improves their reputation and wins them more clients.
You don't make society better by reducing the quality of everything to the lowest common denominator.
> You don't make society better by reducing the quality of everything to the lowest common denominator.
A common denominator is the only way to make things fair. You pointed out the conflict of interest; very well, that's a good point. But don't throw the baby out with the bathwater. The system we currently have is so vulnerable to corruption, that it wouldn't be hard to make something more fair.
It's worth bearing in mind that rich people play an important role in restraining the power of government. Our founding fathers were, after all, the wealthy elite of their time. Despots and dictators crack down on wealthy people who do not fall in line, and guaranteeing independent legal representation (which the Constitution does) is a bulwark against such overreach.
> A common denominator is the only way to make things fair.
This is how you destroy civilizations. The Soviet Union and Cuba come to mind as places that tried to make society more fair by equally distributing poverty and oppression. You make society better by pulling the bottom up, not by pushing the top down.
That's ridiculous. I never said "limit both sides to a budget of $10." I said same, or same-ish. Eliminating the massive disparity in justice that unlimited money can buy you is not going to "destroy civilization", and I don't have much respect for people who have to use hyperbolic threats of catastrophe to try and scare people away from a point.
Lawyer A is the best Lawyer in the country. He is forced to be a "salaried employee of the state". Who do you think 'gets assigned' to his representation list - a wealthy person or a poor person?
Your solution works if all lawyers are the same OR if the whole system is clean of corruption. First is impossible, second is impossible.
If you start thinking "we can make assignments fair/automated/etc." you already lost because the argument just switches to "who manages the control of assignment's fairness".
Who watches the watchmen? The answer is: no one. The world is not fair. Deal with it.
Nobody says "stop trying to make it more fair". But stop trying to
force fairness.
Side A picks a pair. Side B picks the representation. Both lawyers are equally mediocre.
Side A's lawyer gets the materials analysis/arguments/speeches written by "Lawyer A", best in the country, now retired and working as the consultant.
Do you know why "Layer A" is working as a consultant (for $$$) and the representation lawyers are mediocre mouthpieces? Easy: as soon as Lawyer A distinguished himself in a court a few times, nobody picked him as a part of the pair at the first stage anymore (out of fear of loosing him at the second stage of selection).
There are rules governing ethics for legal professionals. Those who break the rules risk their careers. This seems like a problem that could be addressed, or at least drastically mitigated.
I'm not saying that a solution rattled off the cuff in a forum on HN is what should be enshrined in law. But there's a reason everyone agrees Citizen's United is an insult to democracy. And we have the exact same problem in place in our courts, and that's an insult to justice. Unlimited money buys results. That's fucked up, and you'll never convince me otherwise.
My thesis is: unlimited money will always buy results. Money is a shadow of power and the point of power is influencing the world. Your solution of "reducing things to a common denominator" which you claimed to be "the only fair thing" will only make the application of power indirect.
FWIW I think the gradual curbing of the limits of power and hoping for human nature changing (or an alien invasion) is the way to go.
I didn't actually say "reduce to a common denominator". I just said find a common denominator. I think the best solution will involve meeting in the middle- curbing excessive spending by whatever means are necessary, and also drastically increasing funding to public defenders to increase both their numbers and their prestige.
And regarding "whatever means necessary"- just because I can't invent something off-the-cuff to satisfy a random stranger on the internet, doesn't mean that human ingenuity, and well-thought-out legislation can't find a 90% solution. And no amount of cynical pessimism is going to change my mind about that.
You want to tell a man that he can't spend all of his money to hire the best lawyers he can afford to try to defend his freedom?
As for being able to come up with some "well-thought-out legislation", maybe you don't live in the same world as me, but the 20th century is strewn with the folly of those who think they can engineer society. I don't understand why so many of us are eager to repeat their mistakes.
Not everyone agrees Citizen's United is an insult to democracy. Do you even know what actual case was about? The government was trying to stop an anti-Hillary movie from being publicized because they claimed it was illegal campaign spending. The Supreme Court did right by rejecting an absurd attempt to regulate political speech.
What's the difference between money spent by the candidate and money spent by a super pac? If both pools are being managed by campaigning experts, there's not a single difference. Citizen's united established that there is absolutely no limit to the amount of money that a candidate can use to win an election, as long as there's a separate campaign manager for the PAC and they don't collude.
No, the hatred of CU is not absolutely unanimous. But it's pretty widespread, and no amount of word juggling will change the fact that it effectively allows unlimited amounts of anonymous untraceable money to influence elections.
I think allowing monetary restrictions on campaign-finance (with the exception of prohibiting anonymous donations directly to politicians) is the court's campaign-finance original sin.
When multiple people share an opinion and want to advocate for it, they have to spend money to get heard. Printing pamphlets, making videos, paying people to stand on the corner. You can't have freedom of speech without the corresponding freedom of advocacy.
I'm only taking your thinking to its logical conclusion. Lots of things about our society aren't fair, but trying to make them all fair would just make us all worse off. What's wrong with letting people pay for a better defense? How does what I spend on my lawyer affect the services that a public defender provides for someone else? Your argument is rooted in envy, not in an attempt to make anyone better off. All you propose is to make some people worse off so that the system can meet your criteria of fairness.
> but trying to make them all fair would just make us all worse off
Lots of ideas look ridiculous if you take them to ridiculous extremes. I'd feel silly if I had suggested a contitutional amendment requiring absolutely everything in the world to be absolutely fair in every way. Boy, I'd have egg on my face then.
It's easy to mock a straw man for looking silly, but it says a lot more about the one doing the mocking.
> How does what I spend on my lawyer affect the services that a public defender provides for someone else?
That's idiotic. In a contest between two people, one person having an unlimited budget absolutely makes a big difference. And you know this, because that was the point of your second sentence.
> Your argument is rooted in envy
Grow up. As someone who is actually pretty well off, and who has never been to court, I'm pretty confident in saying you don't know what the hell you're talking about. A desire to help the downtrodden doesn't mean I'm green with envy. You're just insulting a caricature you've drawn in your own mind with no relation to reality.
Your original argument was that lawyers on both sides of a criminal prosecution should be public employees. One side is already always a public employee, the prosecution. That's what I'm referring to here. The fact that one person can afford a better defense in one case doesn't do anything to hurt the defense of some guy that can't in another.
You've made a good case against that solution. But I remain far from convinced that there's not another solution, like having the lawyers of both sides be salaried employees of the state.