The Law Offices of Marnie M. Slavin P.C.

A Legally Blonde Look at Criminal Punishment

By Ari Mathew • April 24, 2011 • Filed in: Criminal Law Ranting

Written by Ari Mathew, an attorney not affiliated with The Law Offices of Marnie Slavin.

Not intended as legal advice.

Would you have a problem if you helped acquit someone who you knew is guilty?

This is a common question I get asked by friends, family and colleagues when the find out that I am a criminal defense lawyer.  Depending on the audience I usually pick one of the two following answers:

1.      I am more afraid of adequately defending someone who is innocent.

2.      In reality all I do is try to negotiate fair and reasonable second chances that my clients actually deserve.

Although both true statements, I realize neither answers the question. In fact, I do not think the question can be answered in a truly satisfying way. However, I morally believe in criminal defense work and I hope to answer parts of the question here and in subsequent blogs.

The following is from the 2001 movie Legally Blonde,

Professor Donovan

Would you rather have a client who committed a crime malum in se or malum prohibitum?

Elle

Neither, I would rather have a client who is innocent.

Sarah

Malum prohibitum, because the client would’ve committed a regulatory infraction as opposed to a dangerous crime.

Elle

I changed my mind. I’d pick the dangerous one. I’m not afraid of a challenge.[i]

Although Sarah, Selma Blair’s character, correctly answers the question and demonstrates she completed her homework, her answer fails to capture the difference between the two types of crime.  Malum in se means the act is inherently wrong. Most people would accept that murder, rape, molestation fall into this category; that is, murder is wrong regardless of whether there is a law against it. The public gets angry when someone commits murder and gets away with it. Think O.J. Simpson.

Malum prohibitum means it is wrong because it is prohibited. These are acts that do not have moral implications until there is a law that prohibits them. I would argue there is no moral issue with cautiously going 75 miles per hours on an empty highway.  If the sign posted says 65 MPH then the law would disagree. We often congratulate our friends when they beat a speeding ticket.  Unlike malum in se crimes, our moral compass, on some level, understands that malum prohibitum crimes are potentially a senseless waste of our resources especially when strictly enforced.

When Sarah, in Legally Blonde, chooses her client she may have done do because she is scared of her client, feels the stakes will be lower, or perhaps that her client could have some moral justification for his actions.  What her answer fails to convey, though, is that with every malum prohibitum client there is a chance our society punishes an individual who has done no harm, actually or morally.  With our example of the speeder going ten miles per hour over the speed limit; he has not hurt anyone may be less threatening than an absent minded man driving the speed limit.

Elle’s first answer I like even less than Sarah’s. Elle’s first answer “I would rather have a client who is innocent,” represents one of my greatest fears. If Elle fails then she may she have to stand by and watch while an innocent person is incarcerated. If she wins, her client’s arrest record will still indicate the charge and affect his ability to get public services, apartments and employment. There are more expenses and time involved if he wants to get it off his record completely. He may have already lost his job as he was unable to show up for work having been in court. His friends, family and colleagues may all doubt his morality for the rest of his life. He may never recover and remember—he is innocent.

Finally, Elle’s second answer is perhaps the best. Elle likes the challenge. Of course, those of us who saw the movie understand she actually challenged Sarah for a boy. Though, here, we will ignore this. I, like Elle, would pick the malum in se client because I would not be overwhelmed by the sense that our legal system is failing. Instead, at least, I would be involved with the part of the legal system that is focusing on moral wrongs..

I fear for innocent clients. I get angry when moral people have to answer for inefficient laws. However, when it comes to real moral wrong—I am not afraid of a challenge.

 

 

 

 


[i] Legally Blonde,  Karen McCullah Lutz & Kirsten Smith

http://www.imsdb.com/scripts/Legally-Blonde.html (last visited April 24, 2011)

Comments

Thanks for clearing up the whole Legally Blonde legalese that nobody understood. It makes a lot more sense now. But the system still sucks.

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