Snitching and Criminal Defense

Some of the practicing lawyers in the blogosphere are arguing about whether it’s ethical to refuse to represent clients who snitch to the government to get a better deal. On one side we have Mark Bennett, who refuses to have anything to do with snitches. His contract with his clients makes this clear in advance. Scott Greenfield at Simple Justice feels about the same way.

On the other side, Norm Pattis believes that representing snitches, unpleasant though it may be, is part of the lawyer’s job. Gideon sides with Pattis, but he also seems amused by the whole situation. He’s a public defender. He doesn’t get to choose his clients.

I find this argument fascinating. On the one hand, I’ve always admired the seriousness with which lawyers treat their ethical obligation to represent their clients, so I lean toward Norm’s view. On the other hand, the libertarian in me respects Bennett’s right to choose the terms of any contract he enters, as long as all sides agree to it.

On the third hand, the economist in me thinks both sides are missing an interesting point of common ground.

That may not seem possible. Consider Norm Pattis’s stirring defense of his point of view:

I cannot comprehend the view that cooperation is wrong. It is about the client, and the client only. … A criminal defense lawyer’s sole duty is to his client. We have no duty to do justice. The Sun rises and falls on the sole question of the client’s interest. If serving the client harms another, so be it.

But if Bennett’s way is so bad, why do people keep hiring him? One obvious answer is that his clients are just stupid, and they’re allowing him to serve his own agenda at their expense. That answer might have some merit, but what little I know about economics tells me it’s a bad answer.

For one thing, it’s too easy. Economics would be a piss-poor science if it tried to explain all puzzling human behavior by asserting that people are stupid. In fact, economists habitually assume that people are pretty smart when it comes to the things that are important to them—things like staying out of jail.

But if Bennett’s clients are so smart, why are they letting him get away with closing off certain avenues of defense? The economic answer has to be that they’re getting something in return. Since I don’t think Bennett is offering deep discounts, he must be giving them something else.

When economists find puzzles like this, there are a few standard theories that often explain what’s going on. Two of them come to mind in this situation.

First, there’s signalling, which is a way of letting other people know something about you. If you’re rich, and you want everyone to know you’re rich, you could just tell people how rich you are. But that’s not very convincing because you could be lying. If you want to send a convincing signal, you have to find one that’s hard to fake.

For that reason, a common signal of wealth is buying a lot of expensive and recognizable luxury items. This is one of the reasons doctors have their Mercedes, stockbrockers have their yachts, and gangsters have their bling.

So how does this apply to Bennett’s no-snitching principle? Well, if a member of a gang is facing a possible long sentence, the other gang members are going to get nervous. They’ll wonder if he’s going to snitch on them to get a better deal. They’ll wonder if they should kill him to prevent that.

If the arrested gang member doesn’t plan to snitch, it’s worth his life to find a way to signal his loyalty to the rest of the gang, and one way to do that is to hire a lawyer like Mark Bennett who never represents snitches.

The second related concept is commitment. That’s when you demonstrate your dedication to a course of action by closing off alternatives. Tell a girl she’s the only one for you and she might believe you, but you’ll be a lot more convincing if you tattoo her name on your chest, because that’s something you can’t do for every girl you meet.

Much of our modern business world depends on the ease with which we can make commitments. That’s what contracts do for us: They make it possible for us to convince other people that we’ll keep our promises, because if we don’t, they can get a court to force us. Total strangers will trust your commitment to paying back really large loans if you just sign some papers that allow them to take your house if you don’t.

Gangsters can’t use the court system to enforce their commitments, so they have to find other means, which brings us back to snitching. I was particularly interested to discover this bit of Mark Bennett’s client contract:

If the government offers you a deal to cooperate, I will certainly convey it to you and not pass any judgment if you choose to cooperate. But should you cooperate, I will withdraw from your case and not refund any portion of the fee you pay me.

That’s a commitment protocol: A gang member can commit to not snitching by giving a large non-refundable fee to a lawyer who never represents people who snitch. This works especially well if he doesn’t have enough cash on hand to pay another lawyer.

If that’s what’s going on here, then non-snitching lawyers like Mark Bennett are providing a valuable service to their clients by providing a way for them to convince fellow gang members that they won’t snitch. This service has little to do with actual legal representation, but it’s a valuable service nonetheless.

I don’t know if I’m right, but my theory does make a testable prediction. The ability to signal or commit to a non-snitching defense is only valuable to defendents who are part of a criminal organization that is likely to punish snitches. This should be reflected in the client mix. Non-snitching lawyers should get a lot of gangsters, while snitching lawyers should get a lot of white-collar criminals.