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30 January 2017

Public Defenders for All

Imagine if our criminal justice system had no private attorneys, only public defenders. Anyone who is accused of a crime would be represented by lawyers who are assigned and paid by the state. I think the outcry against this would be predictable, and in that outcry are ironically the arguments for why it is necessary. A typical argument against it might go something like this: by requiring me to accept a public defender for my defense, the state essentially requires me to accept substandard representation and limits my chances for an advantageous outcome. Do you see it there? If you don't want to be forced to use a public defender because you believe they aren't as effective but the system currently grants public defenders to those who cannot afford private counsel, the system is by definition unjust as it offers justice only to those who are affluent enough to afford it.

There are two solutions to this. First, we could make it so that no one is so poor that they couldn't afford a private attorney should the need arise. (This isn't really a solution at all, though, because legal representation would still be stratified, with those who are more affluent being able to afford, on average, attorneys with better training, experience, and resources than those who, while not poor, are still relatively worse off.) Second, we simply force all defendants to use randomly assigned defenders who are paid by the public. There are definitely discussions to be had about, perhaps, more stringent requirements for those lawyers and ways to ensure adequate resources (e.g. paralegals and discretionary funds), but other issues, like the paucity of lawyers currently serving as public defenders and the motivating factors that lead public defenders to encourage their clients to accept plea agreements, would solve themselves as lawyers would either become public defenders or give up their practices and increased resources and changing norms would reduce plea incentives.

These same principles, however, apply just as well to other kinds of justice outside the criminal justice system, schools for example. How can we justify private schools? (Religious education might seem like an exception, but religious institutions are still bound by the same educational standards and tend to do surprisingly little actual religious education. The religious indoctrination could more efficiently be done outside of regular school hours, say on Sunday mornings. Hey, we could call it "Sunday School!") How can we justify private medical insurance? Private security?

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