Mercer Law Review Volume 50 Number 2 Articles Edition Article 2 3-1999 The Calling of Criminal Defense Abbe Smith William Montross Follow this and additional works at: https://digitalcommons.law.mercer.edu/jour_mlr Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Smith, Abbe and Montross, William (1999) "The Calling of Criminal Defense," Mercer Law Review: Vol. 50 : No. 2 , Article 2. Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol50/iss2/2 This Article is brought to you for free and open access by the Journals at Mercer Law School Digital Commons. It has been accepted for inclusion in Mercer Law Review by an authorized editor of Mercer Law School Digital Commons. For more information, please contact [email protected]. The Calling of Criminal Defense by Abbe Smith* and William Montross" There is a call to us, a call of service-that we join with others to try to make things better in this world. - Dorothy Day1 I have known men charged with crime in all walks of life ... when you come to touch them and meet them and know them, you feel the kinship between them and you .... I have friends throughout the length and breadth of the land, and these are the poor and the weak and the helpless, to whose cause I have given voice. - Clarence Darrow2 * Visiting Associate Professor of Law, Georgetown University Law Center. Yale University (B.A., 1978); New York University School of Law (J.D., 1982). Abbe Smith teaches in the Criminal Justice Clinic and the E. Barrett Prettyman Fellowship Program at Georgetown. From 1990-1996, she was the Deputy Director of the Criminal Justice Institute at Harvard Law School. From 1982-1990, she was an Assistant Defender at the Defender Association of Philadelphia. ** Assistant Defender, Defender Association of Philadelphia. Fordham University (B.A., 1991); Harvard Law School (J.D., 1994); Georgetown University Law Center (L.L.M., 1997). From 1995-1997, William Montross was a graduate fellow in the E. Barrett Prettyman Fellowship Program, practicing criminal law and supervising students at Georgetown's Criminal Justice Clinic. The authors wish to thank Tanya Pilipshen and Judd Lawler for extraordinary research assistance. We hope they follow their calling, wherever it may lead them. We also wish to thank Milner Ball, John Copacino, Robert Drinan, Monroe Freedman, Sally Greenberg, James Keenan, Howard Lesnick, Judith Levin, David Luban, Marc Margolius, Wallace Mlyniec, Carrie Menkel-Meadow, Russell Pearce, Mark Tushnet, Stephen Wizner, the Georgetown University Law Center Faculty Workshop, and the Mid-Atlantic Clinical Theory and Practice Workshop. 1. ROBERT COLES, THE CALL OF SERVICE xxiii (1993). 2. ATTORNEY FOR THE DAMNED 513, 530 (Arthur Weinberg ed., 1957) [hereinafter ATTORNEY FOR THE DAMNED]. 443 444 MERCER LAW REVIEW [Vol. 50 I. INTRODUCTION: A HOSTILE CLIMATE FOR CRIMINAL DEFENSE LAWYERS AND OUR CLIENTS Criminal defense work is an increasingly difficult undertaking in these harsh times. Blame is a favorite pastime. Vengeance follows close behind. Compassion for those who commit wrongdoing out of misfortune seems either nostalgic or naive. Instead, there is a universal call for individual accountability; wrongdoers ought to be held strictly responsi- ble for their actions, no matter the circumstance.? Along with blame and vengeance comes a lust for punishment. The public cannot seem to get enough of it.4 The United States is building prisons at a record pace. If the current trend continues, the number of Americans behind bars will soon surpass the number of students enrolled full-time in four-year colleges and universities.' Incarceration remains a popular solution for a wide array of social problems.' As one criminologist has noted, "jail has become the social service agency of first resort.'"7 3. There are a growing number of commentators across the ideological spectrum that call for greater individual accountability for wrongdoers and ridicule as an "excuse" any suggestion of social causes. For a small sample, see SHARON LAMB, THE TROUBLE wrrH BLAME: VICTIMS, PERPETRATORS, AND RESPONSIBILITY (1996); ALAN M. DERSHOWITZ, THE ABUSE EXCUSE (1994); and JAMES Q. WILSON, THINKING ABOUT CRIME (1983). 4. Lois G. FORER, A RAGE TO PUNISH (1994). 5. See Fox Butterfield, CrimeKeeps on Falling;but PrisonsKeep on Filling, N.Y. TIMES, Sept. 28, 1997, at D1; Fox Butterfield, 'Defying Gravity,' Inmate Population Climbs, N.Y. TIMES, Jan. 19, 1998, at A10. These are boom times for the prison industry, in which employment has increased thirty percent. Morning Edition (National Public Radio broadcast, May 27, 1997). 6. For example, incarceration is increasingly proposed to address juvenile delinquency, illegal immigration, and drug use. See, e.g., Jerry Gray, House Passes Bill to Combat Juvenile Crime, N.Y. TIMES, May 9, 1997, at 1; Celia Dugger, Dozens of Chinese from 1993 Voyage Still in Jail, N.Y. TIMES, Feb. 3, 1997, at 1; Rick Murphy, Prosecutors Shun Drug Treatment Center, N.Y. TIMES, Apr. 6, 1997, § 13 (Long Island Weekly), at 4. There may be constitutional limits to some of these practices. See, e.g., Fox Butterfield, Indiana Court Bars Mixing of Young and Adult Inmates, N.Y. TIMES, May 15, 1997, at A20. 7. Chris Reidy, It costs to lock 'em up: But jailing may not pay, BOSTON GLOBE, June 27, 1993, at 67 (quoting Elliot Currie). Prison is increasingly becoming a social service agency of last resort as well. David C. Anderson, Aging Behind Bars, N.Y. TIMES MAG., July 13, 1997, § 6, at 28. 1999] CRIMINAL DEFENSE 445 If prisons were not enough, there is the ever-popular death penalty.' For some prosecutors, every homicide is a capital case.9 The few prosecutors on the "other side!-those who have been long-standing opponents of the death penalty-seem to be changing their minds1 ° or getting out of the prosecution business altogether." Politicians and judges opposed to the death penalty are practically an endangered species; they pay a steep political price if they stick to their princi- ples. 2 It is not that those accused or convicted of crime have never before been reviled or reproved. Prior to the advent of penitentiaries in America in the nineteenth century, there were all sorts of cruel punishments inflicted upon convicted criminals, including whipping, 8. See, e.g., Sam Howe Verhovek, As Texas Executions Mount, They Grow Routine, N.Y. TiMEs, May 25, 1997, § 1, at 1. As of 1997, all but twelve states--Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin-permit the death penalty. Id. 9. See, e.g., Tina Rosenberg, The Deadliest D.A., N.Y. TIMES MAG., July 16, 1995, § 6, at 22; Kevin Sack, Jury Holds a Drunken Driver's Life in the Balance, N.Y. TIMES, May 6, 1997, at Al. 10. Compare Rosenberg, supra note 9, at 24 (noting that before New York enacted the death penalty in March 1995, Manhattan District Attorney Robert Morgenthau opposed it, but now will "'exercise [his] discretion wisely.'"), with Robert M. Morgenthau, What Prosecutors Won't Tell You, N.Y. TIMES, Feb. 7, 1995, at A25 (Morgenthau asserting that "[tihe death penalty actually hinders the fight against crime"), and James Traub, The D.A.'s Dilemma, NEW YORKER, July 28, 1997, at 26 (Morgenthau noting that Philadelphia, a city with a comparable population to New York County-and a D.A. who seeks the death penalty for every eligible case-had more than twice the number of homicides than New York in 1996). But'ie Morgenthau, supra. (Morgenthau indicating that he would decide whether to seek the death penalty for two men accused in the brutal slaying of Jonathan Levin, a beloved Bronx high school teacher, "on the merits"). 11. See, e.g., Arlo Wagner, Sonner named to judgeship: Will vacate prosecutorpost for second.highest court, WASH. TIMES, Nov. 1, 1996, at C7. 12. See generally Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death:Deciding Between the Bill of Rights and the Next Election in CapitalCases, 75 B.U. L. REV. 759, 760 (1995) (examining the politics of the death penalty and finding that "[d]ecisions in capital cases have increasingly become campaign fodder in both judicial and nonjudicial elections"). Among politicians, the most steadfast, high profile death penalty opponent, former New York Governor Mario Cuomo, has been replaced as governor by an ardent supporter, George Pataki. See David Nyhan, The cost of death penalty-it's a killer, BOSTON GLOBE, Mar. 10, 1995, at 23. Even Washington, D.C. Mayor Marion Barry, a long- time opponent, recently jumped on the death penalty bandwagon. Vanessa Williams & Cheryl W. Thompson, Outcry, Suspicions Greet Barry Death Penalty Plan, WASH. POST, Apr. 22, 1997, at Bi. As to judges, there are fewer and fewer who could fairly be called "liberal." Neil A. Lewis, Impeach Those LiberalJudges! Where are They?, N.Y. TIMES, May 18, 1997, at E5. 446 MERCER LAW REVIEW [Vol. 50 branding, mutilation, being put in the stocks, and execution. "I Of 14 course, these practices did not occur only in this country. Criminal lawyers cannot escape the scorn heaped upon our clients. Some see us as indistinguishable from those we represent. James Kunen's cleverly titled book "How Can You Defend Those People?"5 captures the cocktail party experience of criminal defense lawyers everywhere. How many times must we face this question and be forced to respond with equanimity and charm? 6 The presumption is that there is something wrong with "those people" and something wrong with those of us who stand by their sides. Unfortunately, it is not just our parents' friends at random social gatherings who think this way-it is our friends.