Paternalism toward clients

The idea of advocates as voices for those who might otherwise be legally mute has obvious relevance to the issue of lawyers’ paternalism toward cli­ents. I use the term “paternalism” to refer to interfering with someone else’s liberty for their own good.

Consider the case Jones v. Barnes¹ Barnes, convicted of robbery, wanted his court-appointed appellate lawyer Melinger to include some specific arguments in his brief. Even though the arguments were not frivolous, Melinger refused to include them, and when Barnes’s conviction was affirmed, he raised an “ineffective assistance of counsel” claim. The US Supreme Court rejected the claim, and Chief Justice Burger’s opinion offered frankly paternalistic reasons for the rejection. Good appellate advocates understand that less is more, and freighting a brief with bad arguments simply detracts from the best arguments in the brief. To give clients control over tactics “would disserve the very goal of vigorous and effective advocacy.”²⁰

Justices Brennan and Marshall replied in dissent that “today’s ruling denigrates the values of individual autonomy and dignity... The role of the defense lawyer should be above all to function as the instrument and defender of the client’s autonomy and dignity.”²¹ Rather clearly, the concept of dignity at work is very close to the one we have been examining. Respect for the client’s dignity consists in getting the lawyer to articulate the client’s argu­ments - how the law and trial looked to the client. Perhaps the client’s argument was that his trial lawyer was ineffective because the lawyer bullied him out of his intention to testify; or perhaps he was incensed that the police tricked him into revealing where the stolen loot was hidden by taunting him about his manhood.

Justices Brennan and Marshall refer to “the values of individual autonomy and dignity.” And one important question for us to consider is whether autonomy and dignity are related values - indeed, whether perhaps they are the same thing, or, more precisely, whether the best analysis of human dignity ^[122] will identify it with autonomy. That would be a familiar and attractive ana­lysis. Familiar, because it has roots deep in the history of philosophy, beginning with Renaissance writers such as Pico della Mirandella (who identifies human dignity with freedom of choice), and including, most famously, Kant.^[123] Attractive, because as we all know, Americans are in love with freedom of choice. Legal historian Lawrence Friedman, analyzing contemporary American legal culture, refers to us as “the Republic of Choice.”^[124] The fact that we don’t like someone else telling us what to do suggests that the offensive feature of paternalism lies in its violation of autonomy - that paternalism offends human dignity because autonomy is, or is the basis of, human dignity.

Before proceeding, it is important to observe that Kant’s concept of autonomy differs greatly from what contemporary Americans ordinarily call freedom of choice. Etymologically, ‘auto-nomy’ means self-legislation: giving laws to oneself and acting according to them. This was what Kant meant by autonomy, and the word entered the vocabulary of morals and law primarily through the Kantian philosophy.

That is surely not what we mean by ‘autonomy’ when we think of freedom of choice in the ordinary sense prevailing in American culture. Freedom of choice means doing whatever I want; that is, not having to do what others want me to do, or even to consider except in a calculating way what others might wish. Freedom of choice means consumer sovereignty. It means don’t tread on me. It means my way or the highway. The difference between this and Kantian autonomy could not be sharper. For Kant, autonomy lies in the power to act on the basis of duty rather than inclination, whereas in American culture, with its strong libertarian streak, it means the power of acting on inclination rather than duty. Kantian autonomy represents freedom achieved through stoic self-control and self-command; it means reasoned self-restraint. Freedom of choice represents casting off restraints. Donagan, a profound student of Kant, complained with some justice that the latter conception of autonomy is a “vulgarity” - but, be that as it may, it is popular culture’s favorite vulgarity.^[126]

However, I want to reject the identification of human dignity with autonomy in either Kant’s form or the consumer-sovereignty form. Auton­omy focuses on just one human faculty, the will, and identifying dignity with autonomy likewise identifies human dignity with willing and choosing. This, I believe, is a truncated view of humanity and human experience. Honoring someone’s human dignity means honoring their being, not merely their willing. Their being transcends the choices they make. It includes the way they experience the world - their perceptions, their passions and sufferings, their reflections, their relationships and commitments, what they care about.

Consider a particularly troubling case, that of Theodore Kaczynski, the Unabomber. Kaczynski, a mathematician-turned-recluse, came to believe that technological society is destroying humanity. In his secluded mountain cabin in Montana, he fashioned bombs and mailed them to technologists, aca­demics, and businessmen whose activities he thought were emblematic of technological society. After years of murdering and maiming his victims, Kaczynski anonymously contacted major newspapers and told them that he would halt the bombings if they would publish his 35,000-word manifesto against modernity, Industrial Society and Its Future. Remarkably, they did. Kaczynski was captured when his own brother read the manifesto, suspected the identity of its author, and turned him in in return for a promise by the government (later broken) that it would not seek the death penalty.^{[129] [130]}

Kaczynski’s lawyers, both of them first-rate federal public defenders, decided to put on a mental defense. The problem was that they couldn’t get Kaczynski to go along. He didn’t even want to be interviewed by a psychiatrist. He had his own theory of how he would win acquittal: his lawyers would move to exclude all the evidence seized from his cabin because the search was illegal, and without that evidence the government had 29 no case.

Of course, the chance that the court would exclude the evidence was approximately zero - a mathematician like Kaczynski would say that the chance was “epsilon” - and Kaczynski’s optimism about the strategy was a product of legal naivete if not of mental disturbance. But independently of his faith in the exclusion strategy, Kaczynski simply abominated the prospect of a mental defense. As he wrote in his manifesto, “Our society tends to regard as a ‘sickness’ any mode of thought or behavior that is inconvenient for the system, and this is plausible because when an individual doesn’t fit into the system it causes pain to the individual as well as problems for the system. Thus the manipulation of an individual to adjust him to the system is seen as a ‘cure’ for a ‘sickness’ and therefore as good.”^[131] In a letter to the judge, he wrote, “I do not believe that science has any business probing the workings of the human mind, and... my personal ideology and that of the mental-health professions are mutually antagonistic.”^[132]

But he was confronted by relentless pressure from his lawyers, from his brother, and from an anti-death-penalty consultant his brother hired to help “manage” Kaczynski.^[133] His lawyers reassured him that the psychiatric evi­dence would be used only at the penalty stage if he was convicted, not at the guilt stage; and Kaczynski, convinced that the case would never get to the penalty stage because he would be acquitted, relented and spoke to the psychiatrist.^[134] Apparently, his lawyers also reassured him that the main reason they wanted him to speak with a psychiatrist was to gather evidence to refute media assertions that he was demented.³⁴

But then they double-crossed him. At the last minute, they announced that at the guilt phase they would undertake the mental defense - the only one that might save his life. Stunned and helpless, Kaczynski demanded to represent himself rather than let his lawyers put on the mental defense.

It is humiliating to have one’s mind probed. [My lawyers] calculatedly deceived me in order to get me to reveal my private thoughts, and then without warning they made accessible to the public the cold and heartless assessments of their experts... to me this was a stunning blow... [and] the worst experience I ever underwent in my life... I would rather die, or suffer prolonged physical torture, than have the [mental] defense imposed on me in this way by my present attorneys.^[135]

Subsequently, he attempted suicide. But if Kaczynski was in a bind, Judge Burrell was in one as well. If he let Kaczynski represent himself, a headline­grabbing trial would turn into a gruesome travesty in which a team of pro­fessional prosecutors mowed down an unrepresented, mentally disturbed defendant and secured the death penalty, which it would have been the judge’s unhappy responsibility to impose. The judge denied Kaczynski’s Faretta motion (a motion to represent himself) on the unlikely ground that Kaczynski was simply manipulating to postpone his trial - although, as Kaczynski rightly pointed out, he had nothing to gain by delaying the trial because he was already in prison. Faced with the alternative of the mental defense and a plea bargain, Kaczynski pleaded guilty, and received a sen­tence of life without parole.

Could Kaczynski have had any respectable reasons for rejecting the psychiatric defense, or was his behavior simply his illness talking? The answer, I think, is that his reasons were perfectly comprehensible and respectable. The mental defense would discredit what he regarded as his life’s principal contribution to human welfare, the manifesto that he had killed to get into print. If the manifesto were discredited, then his intellectual justification for his terrorism would evaporate. The defense would paint him, in Kaczynski’s own words, as nothing more than a “grotesque and repellent lunatic” - in the eyes of millions.³⁶ Where is the dignity in that?

Let me make clear that I am not defending Kaczynski, who remorselessly blew off the limbs and took the lives of innocent people. In my view, that makes him an evil man. Nor am I denying that he may be suffering from some form of mental illness. But the manifesto he wrote is a coherent work of social theory, certainly as coherent as many essays by respectable phi­losophers, and more coherent by far than most anarchist rants on the internet. And his motivation for wanting to avoid the mental defense is equally coherent, and expressed with substantial eloquence. He did not want to be portrayed as a grotesque and repellent lunatic, for then millions of people would dismiss his life’s work as grotesque and repellent lunacy. The thought that he would prefer death or torture to abject humiliation is hardly insane. By failing to respect his wishes, his attorneys demolished his human dignity.

Their defenders might protest. Doesn’t the fact that Kaczynski was willing to permit the mental defense in the penalty phase of his trial indicates that he preferred humiliation to death? The only reason that he rejected the mental defense in the guilt phase was his delusion that he did not need it to win acquittal.

I think the explanation is different. Police interrogators often wear sus­pects down until they sign false confessions simply to make the interrogation stop. I think that, in the same way, Kaczynski’s lawyers simply wore him down, and he finally agreed to the psychiatric interview to humor them and get them to stop. They are, after all, topnotch, relentless advocates, and Kaczynski stated that he was utterly exhausted.^[136]

When Kaczynski’s counsel overrode his resistance and humiliated him in the eyes of millions, it seems to me that they did wrong. But the wrong they did has nothing special to do with Kaczynski’s autonomy. True, he had chosen to forgo a mental defense and they took away his choice. But the important wrong they did to him was not to take away his choice of defense, as though the choice of how to be convicted matters a great deal. It was that they made nonsense of his deepest commitments, of what mattered to him and made him who he was. That was their sin against human dignity. Autonomy has little to do with it.

In the aftermath of his trial, Kaczynski wrote:

Perhaps I ought to hate my attorneys for what they have done to me, but I do not. Their motives were in no way malicious. They are essentially conventional people who are blind to some of the implications of this case, and they acted as they did because they subscribe to certain professional principles that they believe left them no alternative. These principles may seem rigid and even ruthless to a non-lawyer, but there is no doubt my attorneys believe in them sincerely.^[137]

Condescending? No doubt. Kaczynski paints his counsel as narrow­minded professional automata. Given the portrait they painted of him - as a schizophrenic, not a terrorist - this seems like poetic justice.