Hatching a Gadfly: A Defense Attorney on the Front Lines of the Drug War By Catherine Scott Bernard ’07
“Well, so what? That’s the kind of people they were; maybe there was something to it ….” That was the classic formula of the philistine in those years. “There was probably something to it …. In our country they don’t arrest people for nothing.” —Aleksandr Solzhenitsyn, The Gulag Archipelago, Vol. 1.
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hat would Solzhenitsyn make of the 21st century American criminal justice system? In 1939, 938 people out of every 100,000 in the Soviet Union were in the gulag. Seventy years later, 766 out of every 100,000 Americans were incarcerated, and 2,433 out of every 100,000 were on probation or parole. While our observer would be heartened that a U.S. inmate is six times less likely to die in custody than his early-twentieth century Soviet counterpart, he might be more curious about the philosophy of criminal justice that animates a free society jailing its citizens at a rate approaching Josef Stalin’s. In prison, one essentially forfeits all civil rights. Probation is not much better; one loses Fourth, Fifth, Sixth, arguably Eighth, and often First and Second Amendment rights. A probationer can be reincarcerated on the thinnest of evidence. The fact that clients routinely request straight prison time instead of probation was initially shocking, but considering what probation requires in terms of money, time, and risk, the choice makes sense for a lot of people. Working as a public defender has made me increasingly curious about our philosophy of criminal justice as well. Debating the merits of a law is one thing when you’re talking to the people who make and interpret and argue those laws, but it’s quite another when you’re talking to the people who are actually affected by them. I spend a lot less time discussing theory and precedent, and a lot more time telling terrified families why their loved ones have been hauled off to jail and terrified inmates why
38 UVA Lawyer / Fall 2011