A Crisis of Conscience? Christian Lawyers Defending Guilty Criminals
A Crisis of Conscience? Christian Lawyers Defending Guilty Criminals
Lawyers today often must contend with a deal of stigma, much like used car salesmen. People mistrust or disapprove of lawyers, because their job is to argue on behalf of their clients, even if their clients are wrong or corrupt. Lawyers can be seen as a type of legal prostitute, selling their advocacy skills to whoever will pay for them. All the while, it seems these lawyers are required to maintain a kind of moral neutrality, never allowing their own opinions to inhibit their professional responsibilities.
Christians in particular have very strong views on the role of lawyers. This is because Christians must live their lives according to the highest ethical and moral standards. Thus it might seem there is little (if any) scope for a Christian to take up law as a profession, where this requires the adoption of so-called moral neutrality.
Accordingly, the following objection is often put to lawyers: ‘What if you have to defend someone when you know they are guilty?’ The classic situation often involves a rapist or murderer, who has confessed to the lawyer in private, but who nevertheless expects to ‘get off’, or in a really bad case ‘get off on a technicality’. Any lawyer who contemplates defending such a criminal risks earning the revulsion of his or her peers, and will likely be viewed with a kind of horror and disgust by members of the Christian and non-Christian communities alike.
Christians might consider it more acceptable to work in a less controversial area like contract law, which seemingly doesn’t involve such heated moral issues. But certainly, one might argue, a Christian should not seek employment in disreputable areas like criminal law or family law. This article seeks to address those concerns, and hopefully dispel some misconceptions.
The Exception rather than the Rule⤒🔗
The first point to make in response is that the question as posed really is a worst-case scenario, because lawyers work in many areas that pose very few ethical dilemmas. By and large, people don’t object to this. Their concern is much more limited, because it involves criminal lawyers facing a very specific issue in a unique set of circumstances.
The abundant focus given to this issue is largely due to the media’s influence. No blockbuster movie is going to bore a viewer with details of a particular conveyancing transaction, or the finer points of limited liability. Yet nothing grabs the attention more than a contentious moral issue, which strikes at the heart of justice itself. Scriptwriters and novelists tease out these issues time and again, to put their viewers and readers on the edge of their seats. So it is important to put this issue in perspective: most lawyers will not have to deal with this situation.
Not Unique in this←⤒🔗
The second point to make is that law as a profession is not unique in having problems and ethical difficulties. It seems any profession can face similar questions. For example, what of the engineer who must decide how safe to make a building? A more expensive project will make the building safer, so that there is less risk of people being killed or injured in the event of an earthquake. But that consideration is weighed against the engineer’s desire to make a profit. How safe is safe enough? An engineer must face ethical dilemmas, alongside many other professions.
That said however, the ethical problems faced by lawyers seem to be of a special kind. Few other professions require the individual to ignore or bypass his or her own personal opinions, in advocating a view that might be flagrantly offensive. So is there scope for a Christian lawyer to defend a guilty murderer?
In examining this question, it is important to examine a third point: a murderer is not the only example of a guilty person in this world. Christians, of all people, can understand these concepts of guilt and punishment. By God’s standards, we are all guilty, ‘for all have sinned and fallen short of the glory of God’ (Romans 3:23). Not only this, but justice demands punishment, ‘for the wages of sin is death’ (Romans 6:23).
Biblical language actually goes further though, to explicitly use legal terminology, since Jesus himself acts as ‘lawyer’ in 1 John 2:1, ‘We have an advocate with the Father, Jesus Christ the righteous’. Jesus advocates before God, who is referred to in Hebrews 12:23 as, ‘God the Judge of all’. On the cross, Jesus provides a defence for those crucifying Him, saying, ‘Father, forgive them; for they know not what they do’ (Luke 23:34). Stephen, while being stoned, pleads similarly, ‘Lord, do not hold this sin against them’ (Acts 7:60).
There are many other Biblical examples of those who defend guilty persons. One such example involves Moses’ defence of the Israelites, who were guilty of making a golden calf (Exodus 32:9-14). God’s original judgment was ‘they are an obstinate people. Now let Me alone, that My anger may burn against them, and that I may destroy them’ (32:10). But because of Moses’ advocacy, ‘the Lord changed His mind about the harm which He had said He would do to His people’ (32:14).
The interesting point here is that neither Moses nor Jesus simply make a flat plea of ‘not guilty’. Instead, they actually provide arguments in favour of the guilty parties.
Why should the Egyptians speak, saying, 'With evil intent He brought them out to kill them in the mountains and to destroy them from the face of the earth'? Turn from Thy burning anger and change Thy mind about doing harm to Thy people. Again, Moses argues, Remember Abraham, Isaac, and Israel, Thy servants to whom Thou didst swear by Thyself, and didst say to them, 'I will multiply your descendants as the stars of the heavens'.
No-one can doubt the Israelites’ guilt, but Moses nevertheless acts as their defence lawyer.
There are numerous other scriptural examples of similar advocacy being used in prayer to God. It follows that it is not necessarily wrong to defend or plead on behalf of, a guilty person. In fact, every time we ask God for forgiveness, we are pleading on behalf of a guilty person.
Even so, one might argue that it is not always right to argue the case of a guilty person either. A lawyer might present an overly-favourable perspective to the judge, which might result in an unfairly-lenient sentence. Surely, you might say, the object a lawyer is aiming for, is not consistent with what a Christian should aim for.
One Small Part to a Whole Mechanism←⤒🔗
But consider the fourth point: a lawyer is merely one small part of the entire legal structure, and there are many parts to that structure. For example, each criminal case has two sides: the Crown and the accused. And each side has legal representation: the prosecution and the defense. Also in every case, judges and juries make decisions on questions of law and fact. And every court has an appeal process, from the High Court to the Court of Appeal to the Supreme Court.
Now if any part of that structure does not perform its task correctly, there is scope for injustice to occur. A lawyer’s role is to argue the client’s case. If this is done poorly, the client might not get a fair hearing. If a judge’s task is performed poorly, or a jury’s, a person might be wrongfully convicted, or wrongfully found not guilty. The same issues apply to every Court in the appeal process.
On the other hand, if every part of the legal system functions correctly, this will assist in the pursuit of justice. If a lawyer provides a proper defense for the accused, and if the prosecution puts a proper case against the accused, a judge and jury will have all the relevant facts, and can make the best decision possible.
The Right to a Trial←⤒🔗
Well and good, you might say, but a judge or jury’s role is to discern right from wrong, which seems acceptable, whereas a lawyer’s job is to disguise a criminal’s guilt, which does not seem acceptable.
Here, it is necessary to make a fifth, and very important point: no single individual should decide the guilt (or lack thereof) of another. History clearly demonstrates the danger of dictatorships. Dictators typically make decisions that conform to their own individual desires and opinions, not to ‘objective’ notions of right and wrong. As a result, millions have died in ways that few would regard as just.
Of course, there is no fear that a single lawyer will perpetuate genocide if he or she exercises individual judgements about right and wrong. But there is a trap that many people fall into when they ask the question ‘How can you defend a guilty person?’
In labeling the individual ‘guilty,’ one has assumed the role of judge and jury, and arrived at a guilty verdict before a trial has even taken place. The question is not ‘whether you as a single human being consider this person guilty.’ The issue is whether or not this person is proven guilty in the eyes of the law, beyond all reasonable doubt.
This is something that lawyers must understand when they act in their professional capacity.
They cannot reserve for themselves the luxury of deciding who should be punished and who should be discharged. It is necessary to leave those judgments to the greater system that exists around them.
But remember, this notion of ‘shared responsibility’ is not unique to the legal profession. All throughout life there are structures designed to spread responsibility. For example, in the church, the session does not (or should not) make decisions solely on the basis of the minister’s opinion, or any particular elder’s opinion. If a decision is made to excommunicate a congregational member, responsibility for that decision rests with the session collectively, not with any one person individually. Similarly, if a person is convicted of a crime, responsibility for that conviction rests with the legal system collectively, not with any one lawyer individually.
That’s fine, you might say, no single person should decide if another is guilty, but what if the criminal tells you up front that they are guilty? You don’t have to make a decision if the criminal just tells you.
Well, it might seem the obvious reaction is simply to march over to the court room and tell the judge what you just heard. The question though, is whether the judge will believe you, or whether he should believe you.
Beyond Reasonable Doubt←⤒🔗
This is where it’s very important that charges are proved and not just asserted. Any person can accuse someone else of a crime, and have any number of different reasons for doing so. Many accusations of guilt have been made against many innocent people. But if the penalty is life imprisonment, those people should have the right to remain innocent until proven guilty.
A mere accusation should not be enough to convict someone, and if an ordinary accusation is not be enough to convict, how much less should the accusation of a lawyer be enough to convict! Convictions should be determined by the wider justice system as a whole.
This is important to remember when asking the question, ‘what about someone getting off on a technicality’? A criminal might go free because of a technicality, but it is not right to first point the finger at a lawyer for having raised the technicality.
A much better port of call might be the legal system itself. Perhaps the law was deficient in that area, and this is the reason for the injustice. But this very injustice can and should be eliminated by common law evolution. That is, lawyers raise technicalities, and the law evolves to a more acceptable position, where the criminals are not ‘let off’. But the legal system could not tighten like this without constant testing and prodding of the boundaries.
Aha, you say, but doesn’t that mean that the legal system is flawed? How can Christians accept a flawed system?
No Perfect System←⤒🔗
A sixth point replies to this question: no earthly system is flawless. We live in a flawed, sinful world, where every structure we meet contains problems, errors, and inconsistencies. As Christians, we cannot avoid all institutions that contain such flaws. The challenge that every Christian faces, is to work in God’s Kingdom, notwithstanding the ramifications of sin. The existence of difficulties in the legal system is not reason enough for Christians to completely avoid criminal law as a profession.
But, the reply goes, wouldn’t we actually improve our legal system by removing lawyers? Are lawyers really necessary?
The Right to a Defence←⤒🔗
A seventh point would say, yes, lawyers are very necessary in order to present each case in a clear fashion, uninhibited by a lack of legal understanding or eloquence. Without lawyers, many people would be disadvantaged: some people do not understand the law; some cannot express themselves clearly; indeed, some people are mentally handicapped. Yet it is important that none of these people are prevented from expressing their case properly. That is the importance of having a trained professional to articulate any given side of a debate.
All right, you might continue, but it still seems unpleasant or wrong for a Christian lawyer to abandon his or her principles, in favour of the client’s position.
The Lawyer is Acting for the Defendant←⤒🔗
But consider an eighth point: the lawyer does not abandon his or her principles in advocating the client’s position. The lawyer might disagree with the client, just as almost any professional might have a different opinion from the person employing his or her services. A doctor might advise his patient to have an operation, against the client’s wishes. Or a patient might seek an operation that the doctor considers unnecessary. The doctor is not sacrificing his own principles in going ahead with the operation, nor is the lawyer agreeing with the client in providing a defense.
In that sense, there is no ‘moral neutrality,’ because the lawyer is not claiming to have a moral opinion on these issues. The lawyer’s moral opinions might be very well-formed, but it is not a lawyer’s role to provide the Court with his or her very well-formed moral opinions. Nor is it a doctor’s role to usurp the patient’s right to refuse medical treatment.
Christ Belongs in the Court←⤒🔗
All of these points have been made in support of our legal system and the job that lawyers must perform. However, after mentioning all of these, it is necessary to concede that there are still outstanding problems with the legal system, which the media is very good at dramatising. Christians in criminal law can potentially face these problems, and might have significant difficulty doing so. But Christians should not avoid the legal profession simply because these problems exist.
On the contrary, if we need Christians to work in areas that provoke comparatively few moral objections, like farming, teaching, the ministry, etc, how much more do we need Christians to work in areas of considerable moral contention? To leave criminal law to non-Christian lawyers, is to abandon some of the most important and pivotal areas of justice, to those who know nothing of what God says about justice.
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