A REPLY TO THE BEST DEFENSE

By MICHAEL C. DORF

Wednesday, Aug. 09, 2000

A recent Columbia Law School study reveals that over two-thirds of death sentences imposed in the United States are ultimately reversed because of serious, non-technical errors in the guilt or sentencing phase. Troubling statistics like these have led many people to renew calls for abolition of, or at least a moratorium on, capital punishment. In my essay "Death and Taxes," I argued that ending executions -- while an important accomplishment -- would still not address the core problem that leads to errors like these and, often, to incarceration of the innocent: inadequate funding for pre-trial investigation and trial defense in all criminal cases.

In his reply to my essay, federal prosecutor Barton Aronson contends that I do not appreciate the role prosecutors play in protecting defendants. He also takes me to task for advocating throwing money at a complex problem. His arguments are unpersuasive.

Prosecutors In Practice: The Incentive to Convict At Any Cost

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Mr. Aronson observes that unlike defense attorneys, who must zealously represent their clients' interests, prosecutors owe their obligation to justice. Of course, I do not believe -- nor did I say -- that all or even many prosecutors deliberately set out to convict innocent people. What I do believe, and what experience shows, is that all attorneys are tempted to play to win, whether representing an accused criminal, a corporation, or yes, even The People. Some give in to the temptation: Justice Department mottoes and guidelines aside, the realities of life create temptations for prosecutors to cut corners.

Mr. Aronson writes that "with extraordinary exceptions," prosecutors lack "any interest in convicting the innocent." One might say the same about the police; yet as recent scandals in Los Angeles and Philadelphia reveal, police sometimes forget about such niceties. And even if one writes off the grossest abuses as the work of a few bad apples, the fact remains that the most honest of police are engaged in what the United States Supreme Court has repeatedly characterized as "the often competitive enterprise of ferreting out crime."

It blinks reality to suggest, as Mr. Aronson does, that prosecutors are largely immune to similar competitive pressures. Indeed, the fact that police and prosecutors understandably view their job as, in substantial measure, obtaining convictions, is the very reason why the Sixth Amendment guarantees the accused a right to counsel. Prosecutors gain kudos within their offices, and advance to higher positions, based on a high conviction rate -- not for refusing to go forward based on dubious evidence, or for taking a liberal view of what evidence is exculpatory, and therefore must be turned over to the defendant. As a U.S. Attorney it was Rudolph Giuliani's reputation for toughness, not judiciousness, that helped launch his political career. If political advertisements are any guide, that is the rule rather than the exception.

Why Money for Criminal Defense Is No Ordinary Expenditure

Mr. Aronson also points out that "no matter how much money we pour into the system," some innocents will still be convicted. Should we therefore spend nothing? Why clean your house at all given that you cannot eliminate every last speck of dust? Why send your children to school, given that they cannot learn everything? The impossibility of achieving perfection is no reason to accept a flawed status quo.

Moreover, Mr. Aronson forgets that an adequate defense is not just any expenditure, and that money spent on it is not just part of a calculation of what is cost-effective. Instead, an adequate defense is a constitutional right, and that right is still, after all these years, not being honored. Study after study has shown that by any standard, most States provide grossly inadequate funding for pre-trial defense investigation or to attract the large numbers of at least minimally competent defense attorneys necessary to staff the system. There have been improvements in recent years -- as Congress and some States have lifted arbitrary dollar caps -- but the basic picture remains bleak.

It is true, as Mr. Aronson notes, that every dollar spent on criminal defense is a dollar that cannot be spent on prosecuting still more people, or for that matter, on projects outside of the criminal justice system. But in a free society there is a fundamental difference between the government failing to improve people's lives -- by providing safer streets, cleaner parks or prescription drug benefits -- and the government actively depriving people of their life or liberty. When the state seeks to kill someone or lock him in a cage for decades, it has an unshakeable obligation to ensure that it has good reason to do so. Among other things, it has an obligation to provide competent defense counsel who will search out witnesses helpful to the defendant, and who will guarantee an adversary -- not a one-sided -- presentation of the evidence.

The question of whether the public must spend money to provide indigents with a right to counsel has been settled by the Supreme Court in Gideon v. Wainwright. It must. Now all we must decide is how much money is necessary to make that right effective. One thing is clear: It is considerably more than we are currently spending. Otherwise, we would not be putting innocents on death row.


Michael C. Dorf is vice dean and professor of law at Columbia University, where he teaches civil procedure and constitutional law. He is the co-author, with Laurence H. Tribe, of the book "On Reading the Constitution."

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