GUEST BLOG By Shaun Sanders,
3L at Chapman University’s Dale E. Fowler School of Law

One of the most common jabs I hear about law is how wealthy people appear to
be immune to consequences.

In fact, it is usually the highlight of water cooler talk every time some celebrity gets arrested and is inevitably slapped on the wrist. Where most people view this as a blatant example of corruption and inequality, I completely disagree. Rather, after having the opportunity to see how things work behind the scene, I feel like it is actually an illustration of just how fair our system truly is.

First, consider how inherently subjective law is. At some point in time, legislatures identified an issue that was, at a fixed point in time, a problem. To address that problem, they created a rule so that everyone would know how to, as a society, deal with the issue. If the rule is too narrow, then there is a risk that it won’t be effective, and, in some way, the issue will not fully be addressed. On the other hand, if the rule is too broad, then it likely won’t survive scrutiny.

This is, ultimately, what provides jobs for lawyers. Even if there is a generally accepted way in which a law is applied, or has always been applied, all it takes is a skilled legal professional to find a valid, alternative way in which to apply the law to the unique circumstance of his or her client. In this way, phenomena like circuit splits represent a natural variance in thinking and reasoning amongst the population. Moreover, when a higher court decides to overrule lower courts or settle discrepancies across jurisdictions, it doesn’t necessarily mean that previous judgments were flawed — only that the system is attempting to recalibrate itself for all decisions going forward.

Second, consider how some people are more competent and capable at practicing law than others. Personally, I know the top five students at my school — and they deserve to be the top five students. They are brilliant individuals who are gifted in the way they can learn and apply the law. Conversely, there are other students who are likely to barely graduate and pass the bar.

So within any given pool of lawyers, just like any profession, you will have a minority of individuals who are better than everyone else, a minority of individuals who are barely competent to practice law, and a majority of individuals making up the average between either end of the bell curve. In other words: some lawyers are objectively better than other lawyers and more capable at their craft. The result, in an adversarial system like ours, is a competitive advantage.

Third, consider how we deal with advantages in society. If one item is objectively better than another, it is valued by more people, which drives up the cost of that item. Here, the item in question is a good lawyer — or, more specifically, the lawyer’s finite amount of time. This means that if you are a really good law student, who becomes a really amazing lawyer, you are likely going to have more job offers and potential cases than you have time to deal with. This means you can be picky and, of course, charge more. So much more that fewer and fewer people can afford to hire you and, at some point, only the wealthy can gain access to your legal genius.

Finally, consider that the justice system is not free. Criminals aren’t prosecuted by volunteers. Just like every other government body, your local district attorney has to abide by a budget, and there is always a cost/benefit associated with every decision.

So what happens when we add up all these factors?

When Average Joe is charged with a crime, Average Joe likely hires (or is appointed) by Average Attorney who will represent Average Joe in an average way, leading to an average result. Moreover, the DA is more capable of moving forward with the case because the resources associated with trying such a case have been factored into the budget.

However, when Celebrity is charged with a crime, Celebrity can afford to hire Superstar Lawyer who will represent Celebrity in a more sophisticated, substantial way. Superstar Lawyer can afford to do more research, deeper analysis, and explore any and all options to represent Celebrity as best as possible — options that are available to everyone, even Average Joe, but require more effort/time, and thus cost. As a result of of Superstar Lawyer being able to present a stronger, more effective case, the cost of prosecuting Celebrity increases significantly.

This is the most important part of the equation.

You see, whether or not a DA chooses to prosecute someone isn’t necessarily tied to whether or not they believe a crime occurred. Rather, the decision is based on the likelihood of being able to successfully prosecute someone. Thus, a strong defense is as much of a deterrence to prosecution as a weak case. Or, in other words, just as we expect charges to be dropped or reduced when the government can’t prove its case against an accused, the same is true when the cost of prosecution outweighs the perceived social cost of the crime. Thus, the apparent inequality of justice between the rich and poor is a product of allocating resources equally against those we choose to prosecute for crimes. The more sophisticated a defense, the more time and money it will cost society to pursue any action, which ultimately reduces the effectiveness of the system as a whole.

Ironically, the only way to truly address this issue would be to establish some sort of policy of inequality in which we, for example, increase taxes and set aside funds specifically for prosecuting the wealthy… and that wouldn’t be very fair either.