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Resolved: Government Should Pay for Your Defense
One of the things we see, over and over, is the process being used as the punishment. This can be anything from the cops arresting you for failure to identify when you don’t have to, to what we saw happen to Michael Flynn. I have been thinking of some remedies and this is a proposal.
Please note: This is not Bryan’s actual thoughts on the matter, but resolution for debate. The arguments made here are to support this resolution, not stances I necessarily personally believe.
Resolved: Every penny the government spends to prosecute someone, from arrest to sentencing or acquittal, should be matched for the accused for his or her defense. Money can be spent on lawyers, private investigators, labs, etc. Basically anything that the government gets to spend money on, the accused can also spend money on those things. Accounting and tracking costs will be covered by the government.
Any finding that the government did not provide this matching results in both in automatic payments to cover any bills outstanding, an automatic acquittal, and further compensation directly to the accused, tax-free, of 25% of the total defense.
What points do you like? Not like?
Edit: Based on the first several comments, it is clear that I am being misunderstood. This is not some daft idea where the government has employees or contractors it pays to defend you. This is money to spend on your defense. Like vouchers.
Published in General
It’s one of those propositions where it feels like I should be able to come up with a devastating rebuttal but for which I am struggling to actually come up with one.
How long before whatever association it is which organizes defense attorneys then decides to support increases in draconian law arrests?
I mean, right now, no matter how many mandates Gov Newsom thinks is within his purview to install, our local sheriff knows a mandate is not a legal law. Guided by this sane policy, he will not step in and arrest someone over their not social distancing or not wearing a mask. (Should this bogus crap once again come about.)
But our sheriffs in Calif counties are elected. So if because at some point the defendant is guaranteed as much money as the court representing the state or county as plaintiff, then what?
So then should a candidate receive a cushy “Defense Attorneys of Calif Association” slush fund in order to convince the candidate to be all in on all arrests, then all that will happen is even more people might end up being hammered by the law.
Ok, this isn’t a rebuttal, but a request for clarification: Would this proposition factor in the amount of money spent by government agencies to investigate the case?
If yes, how would it handle cases where multiple governments contributed resources to the investigation, and also government spending on resources that contributed to the investigation indirectly (e.g. crime labs, databases, etc.). Is there any limit, really, to what expenses a sympathetic judge could theoretically attribute to the government’s side?
If no, does that not put the defense at a disadvantage when it comes to gathering exculpatory evidence, as they do not have access to the same investigative resources as do government agencies?
To me it feels like I should easily agree, but I haven’t thought about the consequences.
I am not sure I like it for the old reason “He who pays the piper calls the tune”. While I agree that the government with unlimited resources can essentially bankrupt anyone with the process, so this has appeal for equalizing that. I would be worried that by paying both sides (prosecution and defense) the government would be better able to subvert the system. I think this would have the effect of having favored defendants, i.e. Hunter Biden getting off after a trial and unfavored defendants, i.e. Donald Trump having highly paid but ineffective defense. If the government is provisioning rather than providing the services it might work out in the short run; however, eventually the defense lawyers (being heavily subsidized by the government) are going to instinctively work to please their paymasters rather than pleasing their clients. I think that possibility makes this a problematic proposition.
When the government subsidizes something more or less directly it makes it worse. When the government gives vouchers for individual choice, it perhaps tends to improve things. More government-employed public defenders wouldn’t be such a great idea, because the government spending money on public defenders to actually try to solve a problem that its spending money for prosecutors created. Like race hustlers, actually fixing the problem would not benefit those working to fix the problem, but rather increasing frivolous prosecutions would employ many more government public defenders.
I haven’t yet considered how the government funding, say, a gofundme account for every defendant equal to the money spent on his prosecution might work.
In theory, investigators are supposed to be looking for the actual truth, not just the best evidence for their side. Also, prosecutors aren’t supposed to prosecute cases just to get a win, etc.
And while it’s true that many times these things don’t happen, I’m not clear on just how allocating equal funding to the defense would solve that.
The real issue is getting decent people into those jobs. Absent that, how does spending more help on that any more than spending more on “education” has?
That too. :-)
It can but it also dramatically increases the cost. Case in point healthcare is basically a voucher system with Medicare.
If the government is on the hook to pay both sides, it’s a small step to the government controlling both sides. Of course you’ll be able to trust the government to arrange your defense to be as zealous as their simultaneous effort to throw the book at you. The government always knows best after all, right?
As it is, we already provide defense for the indigent. They might have some access to independent investigators, but not the deep pockets of the State. Are you proposing to increase that access as well?
The problem is that you don’t have to be wealthy before you no longer get a public defender etc.
Interesting argument. Basically defense lawyers angling to game the system.
Yes.
And some table or chart could be created. It would be a detail to work out. Accused gets same money to gather evidence etc.
You get to pick your defense. You are making the choices not the government.
Lawyers are picked and paid for by the accused. They just use government money. Think of it as a voucher.
I am not calling for these people to work for the government. It is like a voucher. The accused hires and fires. He or she pick. This lets anyone get high priced lawyers.
Choice.
I am beginning to think none of you think school vouchers would work.
That would be a bonus!
So let me be totally clear, and I did an edit up top:
This is not the government employing, selecting, or directly paying for anything.
The money goes to the accused and is under his or her complete control. The government has nothing to say at all about your defense. Nothing.
This is an upfront payment by the government to defend yourself. Penny for Penny on what they spend. It would utterly eliminate the need for public defenders, as everyone could afford a lawyer.
Yes, it might turn into Legacare and, like Medicare, would only compensate poorly. And then we’d get people playing with the reimbursement codes rather than the actual criminal cases.
No. That is not what I am talking about. There is no other measure in Medicare. There is one here. The State spends money to prosecute. IT has to match that. There are no rate tables to go by. They spend $2 million in investigation and building their case against you, then you get that money for your defense.
I am all for having holes put into my argument, but for heaven’s sake, actually argue against the resolution not something else.
You mean, like all doctors – especially the best – accept Medicare/Medicaid?
Oh wait, they don’t.
Interesting idea. My first 3 top of mind reactions.
1. I am generally against anything that causes the government to spend more money or create another “entitlement”.
2. Lawyers will probably be the main beneficiary of this program.
3. Once you accept government money, they can put restrictions on it. The proposal indicates the defendant can use the money anyway they like, but that would probably not last long. For example, the government may have an approved list of lawyers, etc.
How do you allocate however much of a DA’s annual salary, is for each case, and the defendant gets the same, etc?
It’s hard to find a negative side of this proposal. It’s a general principle that gov’t corrupts what it touches and must be constantly kept in check, but if this could be voucher-based then our school choice experience tells us that’s not a problem here.
Question: Does the defendant have to spend the money?
Government spends a million dollars prosecuting me.
I spend $50k on my defense. Do I get to pocket the rest?
Thought about it. My answer is a definite NO.
Any regulation, any new laws, further complicates the law, grows the government, increases government power and government spending, and divorces the average person from knowing what’s legal (what he can legally do) and what’s not.
I say, deal according to existing laws and professional structures with those prosecutors who prosecute frivolously or politically and who use the process as the punishment. Changing people and their professional ethics and morality would work, but adding new laws will never work, it just creates more work for lawyers and more labyrinthine legal practices and more tax spending for their implementation.
NO NEW LAWS
But remember, the schools can be required to follow federal/state rules to be eligible to receive vouchers.
I’m ok with that.
But this money is taken directly from the public as individual taxpayers. The bureaucracy in terms of personnel and bureaucratic procedures would only be increased. And government waste would also increase.