How much for that justice in the window?

Finding unjust outcomes in the American justice system is trivially easy. Botched death penalty cases, forgotten rape kits, racist juries, the list of failures in the de facto implementation of criminal and civil justice can go on and on, with ten thousand causes and no solutions. Still, these are not attacks on the ideals that undergird our court system, but rather criticisms of the way these ideals are implemented. I am presently interested in another topic: the idea of individuals paying to retain the services of skilled barristers to advocate on their behalf.

Let us assume that hiring a more expensive lawyer increases one’s chances of winning a suit, criminal or civil in a significant way. Consider the public defender versus the high profile corporate defense lawyer. A few tens of thousands of dollars means the difference between guilt and innocence, or more often between ten years behind bars and six months of community service. In many cases, one cannot even bring a civil suit without the money to hire an attorney. If one does have the money for an attorney, the mere threat of expensive legal action can allow one to extract concessions from the less well-off. The more money one can invest in one’s cause, the better the outcome one can expect from the legal system. Money does not help the innocent more than the guilty; in fact, the reverse is probably true. Even after a verdict of guilt or liability, a good lawyer can significantly reduce the consequences to her client. There is no equivalent service a lawyer can provide to an innocent client in a criminal case.

In the American justice system, the more money you have to spend, the better the outcome you can expect. Discerning how much they affect the outcome is difficult, as we have no broadly applicable methods of assessing the accuracy of court decisions, and there are so many variables involved. Nonetheless, there is obviously a direct relationship here, and we can even imagine that a hypothetical program of sociological and economic research might come up with an approximate metric for how much money it takes to improve the chances of a particular plaintiff or defendant. What would we think of a justice system where lawyers were randomly assigned, but fees could be paid directly to the State to ensure a more favorable outcome? I am repulsed by the buying and selling of judicial consideration. But what is the relevant difference between this system and ours?

Regardless of how much money changes hands, in our system the decisions are still made by an objective jury or judge who supports what they believe to be the soundest position. One might argue that this alone is enough is enough to redeem the American justice system: one may be able to buy smart people to make one’s arguments, but at least the soundest position in court will prevail. I don’t find this particularly persuasive. If money greatly increases one’s chances of winning a court case irrespective of the merits of one’s case, which it does, then the jurists’ chance to choose the soundest argument is obviously not particularly effective at providing just outcomes. What else could possibly recommend this approach?

Growing up in America, we are so acclimatized to the pay-to-play nature of our justice system as to pay it little mind. In other civilized countries, however, courts are run very differently. In most of the nations of Western Europe, the judge has broad inquisitorial powers, and the advocates have a very diminished role, serving to ensure that the judge follows the rules and treats each party fairly. Furthermore, many European nations don’t rely on individual citizens to bring tort suits. Instead, government prosecutors have much wider license to bring suits against unscrupulous corporations and similar organizations, and the State is the only actor entitled to claim punitive damages.

European justice systems are certainly not perfect. During the trial of Amanda Knox in Italy, several American commentators, concerned that Knox was being railroaded, noted that she didn’t have a defense attorney to speak up for her in the same way that she would have in an American courtroom. Creating a justice system that produces the best possible outcomes is of course an extremely difficult task. The American justice system, however, should not even be considered as a viable option.