Law in Contemporary Society

Scared to be Robinson

-- By NicoGurian - 11 Mar 2015

Aversion to the practice

Robinson is a smart and successful lawyer, who has managed to create a financially stable practice on his own. He makes deals with prosecutors to help the interests of his clients. He does not defend the mob, and he does not defend large corporate malfeasance. As far as the different practices Eben has presented us with so far, this one should be as appealing as a potential as the next one. Yet, I find myself (and, I would guess, many others do too) having a natural aversion to building this sort of practice. I have this aversion even though I think that the incarceration rates across the country are problematically high and I recognize that social forces have more to do with who ends up in jail than any inherent badness in those people. The problem, I think, is that even though I am consciously aware of it, I fall prey to the disassociation that happens more generally in society, in which people outcast criminals as other so feel okay about punishing them.

Splitting to justify

Punishment is violent and cruel. The only way people can subconsciously except the harsh penalties exacted by the state on criminals is to disassociate themselves from criminals. This disassociation functions in a self-protective manner similar to the fission described in Something Split. For Wylie and his fellow lawyers, the only way to handle the knowledge that a given project they are working on “is going to ruin the lives of thousands of people and their families” is to subconsciously sublimate those real feelings into money and power. Similarly, the only way for people to handle the imposition of harsh sentences that will ruin the lives of thousands of people and their families is to outcast them as something fundamentally different. In this framing, social and economic forces as well as pure moral luck no longer play a role. Rather, the reason for why someone is a criminal becomes something inherently wrong in him. The split self is thus someone who made the right choices, avoided temptation, and stayed on the straight and narrow. The criminal is someone who simply failed where we succeeded. This failure makes them bad and fit for punishment.

Intellectually bankrupt

I understand intellectually that this splitting and outcasting is a subconscious tool to justify punishment and to reassure ourselves of our place in society. I understand that the only real difference between a client of the Harlem public defender’s office and me might be that he was born just a little to the north of me on the very same island. Additionally, one of the key themes we have discussed this semester is that conscious “reasons” for human behavior will never adequately explain anything. So any notion of criminal behavior that tries to point to conscious failures or bad choices as evidence of some inherent wrongness does not hold water.

Yet still so powerful

Yet I still am scared to become a criminal defense lawyer and start a practice like Robinson’s. I cannot help but think that, given the privilege I have of choosing what practice to start, that there are more deserving causes and more deserving people. This idea of “deserving” or not is a direct outgrowth from the idea that criminal behavior can be attributed to conscious choices, one I know is not adequate as a theory of behavior. So one split I feel is the fear of representing someone who does not deserve it while at the same time understanding that the very foundation of this way of thinking is wrongheaded. Another split is that I feel an aversion to becoming a criminal defense lawyer and at the same time think that the level of incarceration in this country is problematically high. The incarceration rate is, of course, a legal problem that lawyers can solve by using words in society. Developing a good criminal defense practice like Robinson or working in more of a policy capacity could actually make a difference on these issues. Furthermore, if any group needs skilled and passionate lawyers it is criminal defendants.

Do not have same fear of prosecution

The uneasiness I have about thinking into the future and seeing myself as a criminal defense lawyer does not rear its head in the same way if I think about becoming a prosecutor. Prosecutors actually put people in prison – they are the ones who help to maintain the incarceration rates I find so problematic. Yet, it just feels so much safer to think about becoming a prosecutor. It feels like my hands would be so much cleaner, even though I know for a fact this would not be the case. Eben asked us if we could handle the responsibility, like Judge Weinfeld did, of deciding how long to put someone in jail for. When Eben asked the question, my immediate thought was that yes, I could shoulder the responsibility. It would be difficult and painful, but I could reason within myself that I could perform the duty fairly and justly. Thinking about it now, however, maybe this is just my version of unconsciously sublimating my guilt not into money and status like Wylie, but into some form of fairness and justice as a way to handle “ruining the lives of thousands of people and their families.”

The question that remains is how do I reverse the splitting and let what I know consciously to be true speak to my unconscious fears?

Comment: Matt Burke

When I read your title, I thought you would say that you didn’t want to be Robinson because, in short, he’s a miserable asshole—or at least, that’s my read on Robinson.

And maybe that idea’s somewhere in your essay. But my broader understanding of your point is that the criminal justice system has a problem: When a person does a thing that that one might call, in the word’s least technical sense, a wrong thing, at the same time, the person has a world of reasons for doing the wrong thing that one might call, in the word’s least technical sense, good reasons. This touches, in my mind, the distinction Eben laid out in class between loving justice and hating injustice.

Myself, I love justice more than I hate injustice—or at least, I enjoy loving justice more than I enjoy hating justice. What follows is that I would rather try work some good than try to remedy some wrong. It might be overstating the game therefore, but I think—sitting here now and thinking—that it also follows that, at the Tsarnaev trial, I’d rather be seated in the judge’s chair or the jury box than seated as counsel for the defense. And society needs all three, just as it needs the prosecutors. Maybe, then, it’s less about fusing the split and more about understanding the fault lines.

In any case, I think your essay tees up the thought nicely. Thanks for that.


Webs Webs

r12 - 29 Jun 2015 - 20:47:48 - MarkDrake
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