By Philip Olsen
People sometimes ask why I work in criminal defense. Why, the question goes, would you choose to represent people you are almost sure are guilty? My answer always comes easily. I remember exactly when I realized criminal defense was right for me.
One day in criminal law class at Emory, my professor lectured on punishment. He named three justifications for punishment suggested by academics: retribution, incapacitation, and rehabilitation.
Retributive justice involves assigning moral blame. It stops personal disputes from escalating. That way, violent feuds cannot develop. This is a very old idea. Its adherents maintain that, instead of allowing vigilantism to compound the number of crimes committed, the state needs to step in and assign blame amongst parties.
Incapacitative justice centers on keeping people from being able to commit crimes. It views human nature practically: bad people are likely to stay bad. All society can do is minimize their impact. It achieves this through imprisonment. Where retribution acknowledges the moral responsibility of criminals, incapacitation avoids any deeper meaning and simply incarcerates.
Finally, rehabilitative justice is about teaching criminals to be good members of society. It proposes that, by removing people from the environments that drive them to crime and teaching them useful skills while incarcerated, they will emerge from the penal system ready to contribute to society.
My professor asked if any criticisms of these ancient justifications occurred to his students. So I raised my hand and stated mine. Basically, our system of punishment assumes the constant presence of skilled defense attorneys. Defense attorneys show that the traditional justifications for punishment are not perfect. In that way, they make sure society does not punish without good reason.
The retributive justification assumes everyone is on equal footing. But our society is economically diverse. Its members come from all walks of life. People’s upbringings, jobs, and incomes give them different points of view. Our legal system cannot assume all people agree on the substance of their moral responsibilities toward others. It needs to account for many perspectives on what it means to be a good member of society.
Moreover, the incapacitative justification gives up on people. It assumes criminals are unfixable. Maybe the authors of this justification never met anyone who had committed a crime. But those who commit crimes can be just as complexly motivated as you or I.
Finally, the rehabilitative justification trusts that incarceration creates an environment friendly to behavioral modification. But even though detention facilities sometimes provide education and job training to inmates, a 2011 study confirmed that the average national recidivism rate for released prisoners is 43.3%.
In every criminal case, two government institutions work against the accused: the police and the district attorney’s office. The justice system assumes that every party has equal resources to use in legal conflicts. But defendants often only have one party on their side: their defense attorney. Choosing a reputable defense attorney can level the playing field for clients otherwise facing tough odds.
So when people ask why I work in criminal defense, I point out their phrasing: Why would I choose to represent people I am almost sure are guilty? I tell them: doubt is the sincerest expression of belief. I work in criminal defense because by asking society to doubt itself – to be absolutely sure it punishes the right people for the right reasons — I put my faith in our system’s ability to punish not blindly, but justly.