Adversaries (Paradigms of Criminal Law Part 2)

prosecution and defense 2

Judith Mizner describes her argument before the Supreme Court. She and her client won, assuring that police cannot search your smartphone without a warrant even if you are arrested.

“A person is not the worst thing they have ever done,” said Judith Mizner, the Chief of the Appeals Unit in the Federal Public Defenders Office.

Another defense attorney jumped in. “Exactly! Prosecutors don’t see past a defendant’s crime. They don’t see who they are as a human being.” Some first year students shifted uncomfortably; others enjoyed the sincerity of the lawyers sitting in front of us.

“But defense attorneys have the luxury of caring only about their clients,” a prosecutor quipped back.

“We have to think about what is right for the defendant, for the victims, and for the rest of the community. I do think about the defendant’s life and who they are when I am deciding between plea bargains and charges, but I also have to face the victims,” she said.

This was our criminal law class for the day. We took a break from the books to hear the battle stories first hand from BC alum, both prosecutors and defenders. Let’s just say that I was quickly reminded that our justice system operates under the adversarial model.

The defenders (public and private) all seemed to share a similar philosophy. A couple seemed almost defiant. They talked about the thrill of standing with you client when the jury comes in, fates temporarily linked with the defendant standing next to them. They saw themselves as up against something bigger than them, and the representatives of that bigger something were sitting right next to them.

The prosecutors spoke about the satisfaction that they had, even on a tight budges, in getting to prosecute the criminals that they really thought were dangerous. They explained that their mission is different than most lawyers who are zealous advocates for their clients. Prosecutors have a duties to their communities, and they represent us in the courtroom just as our congresspeople represent us in the legislature.

The personal and philosophical opposition between defenders and prosecutors shouldn’t have struck me as so strange after so many years of watching courtroom dramas– I saw every episode of JAG growing up, and I now live on a steady diet of The Good Wife. If these shows have taught me anything (apart from some healthy cynicism), it is that our legal system works because of, not despite, opposition. Two sides, completely committed to their cause, battle it out before an impartial and uninterested mediator.

But precisely one week earlier I had been sitting listening to a story about a car thief who painted a tinker bell for his victim rather than appearing before a court at all. There are paradigms of criminal law that do not emphasize the opposition between the state and the criminal (and their respective lawyers). Restorative justice instead attempts to create a collaborative environment between victims and violators. If you have your doubts about how this could really work, please read about how restorative justice worked between a killer and the parents of the woman he killed. But that isn’t the system that we have in place today. The criminal justice system consciously pits the state against the accused, and for this reason, apologies cannot be heard and relationships cannot be restored until after the verdict is in.

After seeing the paradigm shift that restorative justice can offer, the Criminal vs. State system didn’t seem so natural, so inevitable.  With the prosecutors and defenders in front of me that day, it struck me that they play the most essential roles in the system as we have it. Right now, prosecutors represent the state in its role of protecting all of us, and defenders make sure that our individual rights are not trampled. We need them. But we also need to question whether or not the adversarial system is the best one. Restorative justice is one model that sees things differently, but it may not be perfect either. Regardless, it is those of us who take up the practice and scholarship of law who must interrogate the structure we are a part of because it is not inevitable. People just like us built it, and we can build it differently.

Amelia Wirts is pursuing a joint degree in philosophy and law at Boston College. She has already spent four years working toward her PhD, focusing on political philosophy, moral theory, and philosophy of law. She is especially concerned with the gender-based and racial injustices imbedded in the legal system. You can email her at ameliawirts[at]gmail[dot]com if you are interested in pursuing a joint degree in philosophy and law at BC, or if you too are moved by the rational imperative to make our shared world a more just place.

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