Last month, Hillary Clinton faced a slew of criticisms after joking about her defense of an alleged rapist four decades ago. Although most critics (rightly) focused on her grossly insensitive humor, some attacked her for having worked as a defense attorney at all. This sort of misguided criticism is not unique. (Indeed, it is a partial reason why the vast majority of lawyers holding political office previously served as prosecutors, not defense counsel.) Advising the accused is not a politically popular job.
But it is a necessary one. Despite the thankless nature of the work -- the sometimes-belligerent clients, the bereft victims, the harsh society -- the system simply wouldn't work if "Gideon's army" wasn't always alert and at the ready, fulfilling its constitutional duty and ensuring that prosecution does not turn into persecution.
Those who do defense work every day can confirm this fact. For they know that, too often, "innocent until proven guilty" is a mere phrase and not a reality. Guilt is assumed, the thinking being that police wouldn't dare charge someone without sufficient evidence. But police and prosecutors -- even the best police and prosecutors -- are human; like us, they develop tunnel vision, operate behind unconscious biases, and sometimes act immorally. To criticize defense attorneys, the chief checks against prosecutorial abuse, is to promote a judicial system of error by stigmatizing a key motivator for better prosecution.
Consider Michael Morton: A day after turning 32, he returned from work to find his wife dead, his home surrounded by law enforcement. Police suppressed key evidence, including a statement from his young son that he saw "a monster" with a "big mustache" bludgeon his mother, and Morton was sentenced to life in prison for the killing. As the former prisoner writes: "It seemed as if the word guilty was still ringing through the courtroom when I felt the cold steel of the cuffs close on my wrists -- a sensation that in the next quarter-century would become as familiar as wearing a wristwatch." Fortunately, DNA evidence exonerated Morton 25 years later -- but not before the real murderer had killed again. The prosecutor's punishment? Ten days in jail.
Morton is certainly not alone; other innocents languish in prison even now, victims of either trials gone wrong or of intense, indecent pressure to take a plea deal. Even discounting jailed innocents, our prisons are chock-full of inmates handed excessive sentences for relatively petty offenses. But despite all these reasons why defense attorneys are needed now more than ever, lawyers who take up the call to defend those charged with serious crimes habitually find themselves stigmatized rather than congratulated -- even when their clients are eventually acquitted.
This bias is why prosecutors -- not defense attorneys -- predominate in Congress, why conservatives sounded the siren when President Obama hired a criminal defense attorney, and (most troublingly) why many intelligent and ambitious minds are deterred from defense work. The related prejudices -- that all those charged are guilty, that despite America's obscenely high prison population our sentences are, somehow, too low -- are both causes and effects of the bias against defense attorneys.
As Chief Justice John Roberts, hardly a champion for criminals, wrote in a recent dissenting opinion: "Prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers -- one at a time." Too many Americans underestimate the constitutional importance of an independent bar with the ability to prevent government overreach. Yet as Justice Roberts wrote, though prosecutors visibly protect society's interests, so do defense attorneys; for a balanced justice system is the bedrock of a fair society -- and defense attorneys, like prosecutors, are an integral part of that bedrock.
So stop the attacks against Hillary Clinton and other politicians with a past in criminal defense work, because defense attorneys are an integral part of our judicial framework. And being a defense attorney shouldn't mean political suicide.