Response or Comment
The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.
It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically bring to people attached to the established ways of doing things. The fact that the new experiments call for innovation is hardly a strong objection to them. But we might plausibly regard dramatic change as raising a problem if it had either of two results:
First, change might be a problem if it required lawyers to violate ethical commitments fundamental to their role. To take an extreme example about another profession, consider a requirement that doctors carry out corporal punishment (on the theory that they could best calibrate the measure of pain inflicted). We might object on the ground that corporal punishment is bad, but even conceding that such punishment should be inflicted by someone, we might believe that it should not be inflicted by a doctor. Deliberately inflicting pain is so much in tension with other values we want doctors to adopt that we might doubt that the practice would be compatible with a coherent and appealing role morality. Coherent and appealing role moralities are important because, without them, it may be hard to attract good people to the job and motivate them to perform it well.
Second, change might be a problem if the skills required of the lawyer in the new setting had so little in common with skills in other lawyering settings that they did not seem part of a common intellectual discipline. This is a much less dramatic concern than the ethical one, but it raises interesting social issues. At some point, the discontinuity in skills will suggest that we should not be drawing on the profession to fill this role. Even before we reach that point, we may develop ideas about ways in which the role suggests reforms or adaptations of the conventional forms of training and organization of the profession.
William H. Simon,
Criminal Defenders and Community Justice: The Drug Court Example,
Am. Crim. L. Rev.
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