Last Wednesday I attended the Rose Cafe hosted by Scott Miller. One of the key ideas he presented was a faith he held in due process – that every citizen is entitled to equal treatment in the courts. While sensible on paper, there’s a classic conundrum that comes about if you’re a defense attorney – Should you to the best of your ability defend the rights of someone you know to be guilty? Scott Miller spent a great deal of time exploring this question – and in doing so prompted myself to explore my own thoughts on the matter.

I wanted to wait until after 9/11 to discuss this issue, since I think the two are deeply related in two ways. But before I come back to the issue I want to explore the concept of retributive justice. I’d endeavor to define it, but the Stanford Encyclopedia of Philosophy does a better job than I could ever hope to:

“The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles: (1) that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment; (2) that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and (3) that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.” (https://plato.stanford.edu/entries/justice-retributive/)

With this definition under our belts, I want to return to 9/11. Anyone on the internet knows that people have some, shall we say, extreme views of the tragedy. The first extreme position is the far-right conservative take – that the perpetrators who committed these acts of terrorism are subhuman, deserving of justice only so far as they are deserving of (presumably violent) punishment. There is a second extreme response – that of the anti-American Neoliberal. America, they remind us, has done terrible things, particularly to Third World countries, and particularly in the Middle East. These acts are justified, at least to some degree, they say – this is what America deserved.

I should say at this point that I vehemently oppose both of these positions. But more importantly, I see both of these positions as deeply rooted in a sense of puritanical retributive justice. Both sides see some player in the geopolitical game as deserving of punishment. A violent punishment for their violent crimes. And I think that in seeing how retributive punishment is related to these views, we see how retributive punishment itself is a fundamentally ethically flawed position. And this brings me back, at long last, to Judge Miller, and the question of the defense lawyer dogmatically defending the guilty. If we approach this as retributive, this feels wrong – the lawyer is standing in the way of the punishment that the guilty must face. Though Scott Miller was quick to remind us that our Constitution is built on the foundation of Due Process, and with that in mind, he was fulfilling his Constitutional duty.

And therein lies the great tug of war I think that defines much of American morality – Retribution acting against Due Process. Fundamentally, the two cannot coexist. If punishing the guilty is more important than acquitting the innocent, Due Process is a simple waste of time at best and an ethical failing at worst – which, tragically, seems to be the position many of us as a gut feeling default to. We want to see awful people see “justice” – but this is not justice in the truly American sense. Our Constitution was designed fundamentally to uphold a different (and I think superior) justice. We should critically evaluate our relationship with retributive punishment, and a good place to start I feel is to understand the Scott Miller’s description of the defense attorney.

I would like to thank Judge Miller for giving me some of the starting material that has helped me chew on this over the past week, particularly yesterday.