By: Pjotr Koster (NSDV Trivium)
In this article, I discuss whether all criminal defendants should use a public defender. This was the topic of debate during round 1 of the Leiden Open 2020.
Infoslide: A public defender is a lawyer employed by the state in a criminal trial to represent the defendant.
Motion: THW require all criminal defendants to use a public defender.Round 1 – Leiden Open 2020
The arguments below are part of a larger article. Do you want to read the full version? Then click here!
Before any arguments on either government’s side or opposition’s side can be discussed, it’s important to look at the context of this debate: what actors are involved and what do they look like? For this debate, the most important actors to contextualise are the public defenders and the private defenders. Public defenders are paid by the state and normally aren’t paid by the number of cases they take/win. They also normally aren’t paid as much as other law practitioners in fields like patent law. Private firms, however, want to make money. What also needs to be explained is the purpose of a justice system/punishment for breaking the law. Here are three purposes: deterrence, incapacitation, and retribution. Of course, the purposes of the justice system needs to be acted upon fairly and proportionately.
On government’s side, one can claim that, for these purposes, equality in front of the law is required: e.g. if a group of people can get away with or get marginal punishment for crimes, such as tax fraud, they’re more likely to commit those crimes, so the purpose of deterrence isn’t upheld. Now that the burden of proof is set up for the government’s case, it needs to be shown that the requirement of criminal defendants to have a public defender leads to more equality for the law. There are multiple ways to explain this, but the general idea is to explicitly compare private and public defenders. One way is to say that public defenders don’t have a monetary incentive to win cases and are therefore more likely to look at what is a fair punishment. Private firms want money, so they want to win as many cases as possible: they’ll get hired more by richer and more powerful people, earning them more money. Private defenders will try to win every case in any way possible. This leads to dirty tactics to be used: intimidation of witnesses, prolonging the trial as much as possible, etc. An example could be defenders of O.J. Simpson telling him to stop taking his medicine so his hand would grow, so the gloves found wouldn’t fit him. Because of these asymmetries with how these defenders work and what they use, there is more equality under the law when this plan is put forward as now everyone uses the same kind of defender.
On the opposition’s side, it can be explained that resources like time and money already are scarce for public defenders in the status quo. At the moment this plan is put into practice, the amount of work for public defenders is going to increase majorly, as the cases that private defenders have are now transferred to the public defenders. This would lead to worse situations in which public defenders have to rush through cases which means that people are getting worse punishments than they should: defenders have less time to first gather evidence and secondly think of the best/correct implementation of that evidence in the case. This is true in the short term, but also in the long term: as law students see that they need to work long hours, get paid little and need to rush through cases, they’re more likely to pursue different sectors. In the end, the impact is that people get defended worse than when private defenders can be used. This causes more disproportionate and unfair punishments for a big group of people.
These arguments can, of course, use more explanation on why they’re true, which is called analysis. They also need to be weighed off against each other, e.g. why do we care more about all people being defended worse than more trials for rich/powerful people.