From The Problematics of Moral and Legal Theory (Via Abbe Smith):
I can confirm from my own experience as a judge that criminal defendants are generally poorly represented. But if we are to be hardheaded we must recognize that this may not be an entirely bad thing. The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for defense of indigent criminal defendants maybe optimal.
Yes. Because the problem with our criminal justice system is that we aren’t convicting enough people of crimes. Seems silly, wouldn’t you agree, Posner?
The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising, 18 U.S.C. § 708, or using “Johnny Horizon” as a trade name without the authorization of the Department of the Interior. . . . We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from [the Defendant’s] milieu is able to take advantage of such an opportunity.
So Posner speaks out of one side of his mouth complaining that bad defense lawyers are a good thing so that guilty defendants don’t go free. He then speaks out of the other side of his mouth stating that our federal criminal code is so obscure that the average joe couldn’t possibly be expected to know when they are breaking the law. Wouldn’t we want better defense attorneys to help prevent people from being swallowed up by a counter-intuitive, increasingly cumbersome federal criminal code?
Of course, it’s not a day that ends with a “Y” unless some judge or prosecutor is trashing criminal defense attorneys. While the latter is busy getting people off on “technicalities” (read: protecting peoples’ Constitutional rights), the former get to deliver the message from on high that we should encourage our policy makers to create a justice system that thrives on bad defense attorneys—and that such a system is actually more just! And sometimes if you’re lucky, you’ll get someone who has already realized how ridiculous this is, and manages to contradict himself elsewhere. Posner wins again. Posner, meanwhile, limps back to the drawing board, to pontificate more about things Posner is clearly more qualified to discuss.
If only Posner listened to Posner. The former might convince the latter that his views on criminal defense attorneys are sorely misplaced.