- He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself. ~ Thomas Paine
God grants liberty only to those who love it and are always ready to guard and defend it. ~ Daniel Webster
It is commonly accepted that an attorney who practices criminal defense must take a liberal view of civil liberties and of the law and the Constitution. I find myself, therefore, to be an unintentional oxymoron: a conservative defense attorney.
At the heart of conservatism is a distrust of government. That is, because government tends toward waste, fraud, and abuse, the smaller the government is, the better. The more it can be limited to its most essential functions, the more free our society will be. Our federal Constitution attempts to limit the power of government to only those powers specifically enumerated therein. The first ten amendments to the Constitution go further to list non-exclusive examples of those activities forbidden to government. Many of these concern the criminal law.
The government is restrained from unreasonable search and seizure of our person and property. It is further restrained from inflicting cruel and unusual punishment. The government cannot force us to incriminate ourselves or try us twice for the same offense. We are also guaranteed the right to counsel, confrontation of witnesses, speedy trial and trial by jury. A conservative may disagree with a liberal in matters of degree (e.g. What is cruel or unusual? What is an unreasonable search?), but the underlying principle of restraining the government against intrusion upon individual liberty is common ground we easily share.
As the proliferation of criminal laws continues, I think many conservatives will look around to find some strange bedfellows opposing new and onerous criminal laws. Somehow, we have arrived at a point as a society that moral equivalence has rendered moot previously existing religious and social mores that restrained our behavior, and instead of seeking to reinstill those values, we have resorted to the criminal law to control all undesirable behavior.
Is it really necessary for larceny of pine straw to be a felony? Soliciting during school hours is a separate criminal offense? Making a false ambulance request? Leaving an open well? Throwing objects at sporting events? There are a slew of behaviors that are wrong, and should potentially open up liability in a civil action, but make no sense as a crime.
I still believe in non-intrusive searches, harsh penalties for serious crimes, harsher penalties for repeat offenders, and even the death penalty. But I also believe in “beyond a reasonable doubt”, “better ten guilty men set free than one innocent man imprisoned”, and equal justice under the law. Maybe that’s because I think the ultimate judge of our behavior is not an officer, a judge or a jury, and that, while there are guilty men who go free for a while, no one escapes His judgment.