Maybe I wasn’t as clear as I could have been.

First, I didn’t “give a list of things not deserved.” Rather, I acknowledged that people notoriously disagree about WHAT is just and unjust, while pointing out that the very fact that they nevertheless make the effort to persuade others over to their point of view implies their belief in an objective truth by which what is just and unjust may be determined. I expressed no opinion in this post, e.g., on whether the death penalty is just or unjust.

Second, I didn’t say that “justice is simply due process.” I said that everybody accused of a crime, whatever else they might deserve (e.g., incarceration, hypothetically), deserves due process, which includes the whole proof-beyond-a-reasonable-doubt thing and the right to counsel. This is how I can personally justify zealously representing and trying to get acquitted someone who, apart from my role as his attorney, I might think deserves a good long term in prison or worse. This of course doesn’t guarantee that the outcome of such due process will be just, will be what the defendant deserves. Read what Clay Conrad wrote in the comment thread of this post at Bennett’s blog:
http://blog.bennettandbennett.com/2008/12/justice-vs-fairness.html
I agree with Clay.

BTW, I came across the article by Jack Marshall and substantially agreed with it before realizing it was by Jack Marshall. I wasn’t going to remove my link to the article just because it was by Jack Marshall.

Aside from the curiosity of finding anything of value in the work on ethics of the ethically challenged and really dumb Jack Marshall, you’re really digging yourself a serious linguistic/philosophical hole here. And of course, the basic rule when one finds oneself in a hole is to stop digging.

You say in the post that, “Justice is simply people getting whatever it is they deserve.” Then you give a list of things not deserved. People don’t deserve to be enslaved or to enslave. They don’t deserve to be killed by the state which doesn’t deserve to kill them. People don’t, in fact, according to Clarence Darrow you say, deserve anything at all (including justice, I suppose, which is what they deserve – or maybe they get justice as soon as they get nothing?). Now you say that what they deserve (and what you’d been trying to say is that they deserve due process. And I suppose it follows that justice is simply due process.

Of course, if the goal of criminal law were to ensure due process, there’d be no need for that whole proof-beyond-a-reasonable-doubt thing, and no need for your concern with protecting the guilty so that the innocent would be protected. All you’d be after is ensuring that people get the right procedures – regardless of what happens. But you’ve said repeatedly that isn’t what you do. You work for acquittals – which aren’t procedures at all, and are only sometimes a by-product of them.

Of course, what started this, and what you’re disputing, is that prosecutors are to seek justice and defense lawyers are to defend. But the job of the prosecutor isn’t to seek due process, it’s to effect something we’ve clumsily chosen to call justice but which we mean (in that very limited context) “not convicting people the prosecutor thinks are not guilty” and convicting people according to the rules. Nor is the job of a defense attorney to seek due process. Indeed, we may want our clients to get due process (often we want them to get more process than is “due”), but our job is surely to get them acquitted or if not to get them the least conviction and sentence possible. Due process is a means to that end. it isn’t an end in itself.

The ethically troubled Jack Marshall may or may not think due process is a positive thing, but while he believes it’s necessary to the system that someone seek acquittals (or, if that can’t be obtained, lesser convictions), he finds it ethically problematic to do so except for people he’s determined are factually innocent. He’s given up criminal law, he says in the solipsistic article you urge, because it can’t really be done with the purity of ethics he insists on.

But that’s fatuous claptrap, and you know better. The problem is that you keep mixing up abstract philosophical ideas of justice and desert with concrete applications of those terms in criminal law. But they aren’t the same and can’t be mixed without total confusion. Look at what you said: The accused deserve due process but may not deserve punishment. Those simply aren’t the same sorts of deserts.

So stop digging. You need a ladder, not a shovel.

As for the RCDLs: don’t change a thing. From bags if gas comes only gas

We all have a sense of justice. It’s unavoidable for a moral human being. We’d all be pissed off and feel violated if we came home and discovered our house had been burglarized. All of us would want our property returned, and almost all of us would want the burglars to suffer some consequences. Why, apart from money, should I be motivated to work hard to get a client who I (hypothetically) know raped and murdered a child acquitted? I’ll tell you why. Because I believe it’s JUST that I do so. That is, I believe everybody accused of a crime DESERVES due process. And I believe everybody accused of a crime deserves due process BECAUSE many people accused of crimes DON’T DESERVE what the State is trying to give them. (Note that I haven’t claimed to know what anybody accused of a crime deserves beyond due process, although I have had several clients who I strongly believed with every fiber of my being didn’t deserve what the State was trying to give them.)

Now, I might choose not to represent in the first place somebody accused of such a crime, and that choice might be influenced by my own sense of justice, and/or my own estimation of the potential client’s guilt, and/or my own sense of the value of my own time. And I don’t think there’d be anything unethical about that.

The following article expresses very well and closely what Ive been trying to say:
http://www.ethicsscoreboard.com/list/defense.html

“Justice” is far too nebulous a concept for anyone to take that responsibility on himself. You say, “the very fact that we are constantly trying to persuade each other that our sense of what we or other people deserve is right implies at least some faith in the existence of a common and objective touchstone,” but I don’t think anyone who’s thought about the concept philosophically believes that there’s an objective definition of justice that can be commonly agreed upon. Ultimately, we all have a different sense of what justice really is, based on our own subjective experience and perspective. That’s the reason we have a legal system – because justice is such a slippery concept that we need a dozen jurors, at least a pair of opposing attorneys, and a judge in order to try to come up with an approximation of it.

The last thing I – as a potential client – would want from a lawyer would be for him to have his own sense of justice on his mind. Our system is structured in such a way that the defense attorney’s job is to not seek his own definition of justice – if we need to have at least 15 people in order to try to pursue it, then simply being one of those people is acting in the interest of justice. What the defense attorney may think or believe about what’d be just for the client isn’t a part of it, because that’s not how our system is designed.