I'm happy to pay for Tsarnaev's attorney. Here's why.

Accused Boston bomber Dzokhar Tsarnaev is awake now, and federal prosecutors have charged him with two things: 1) Use of a weapon of mass destruction 18 U.S.C. § 2332a(a) and 2) Malicious destruction of property resulting in a death 18 U.S.C. § 844(i). (The State of Massachusetts has not charged him yet.) Tsarnaev can be sentenced to death for these federal crimes.

Preliminary hearing

Rather than wait for Tsarnaev to recover enough to appear in court, the People took the unusual step of holding Tsarnaev’s preliminary hearing in his hospital room. In any criminal case, the chief purpose of the preliminary hearing is to ensure that the defendant is not being held unreasonably. In other words, the People must show that they have enough evidence to keep the defendant under arrest.

The preliminary hearing has other important purposes, though. Mainly, the People are required to inform the defendant of the charges, inform him of his rights, and to see whether he has a lawyer or whether he requires that one be appointed (and, yes, paid for) by the government.

(Note: More than one news story called this hearing an “arraignment.” It wasn’t. An arraignment comes later and features a formal reading of the charges after which the defendant is expected to enter a plea.)

Tsarnaev says “no”

Apparently, the defendant was able to utter only one word during the hearing. When the judge asked him whether he could afford an attorney, he said, “No.” As a result, the head of the Boston federal public defender’s office, Miriam Conrad, will represent him. (Notably, she also represented failed shoe bomber Richard Reid.)

I was a little surprised at the tone of some of the headlines. ABC News, for example, reported: “Suspected Boston Bomber Receives All-Star Defense Team.” This overstates the case a little. In any felony case, more than one attorney is likely to help, and in a high-profile case such as this, you’d expect the head attorney to be the team captain with the rest of the office pitching in. I think it’s a little misleading to characterize this as the outlandish appointment of a dream team.

Still, the headlines echo the public’s frustration. We’ve been attacked, and now we’re being asked to pay a lot of money to defend the very person who attacked us.

Who says we have to pay his attorney?

In all criminal prosecutions, the accused… shall have the Assistance of Counsel for his defence. U.S. Const. amend VI

You’ll notice that, while the 6th Amendment clearly states that the accused has the right to a lawyer, it doesn’t say we’ve got to pay for it. It also doesn’t say when this right attaches or how much lawyerly assistance the defendant can expect.

The 6th Amendment was ratified in 1791, but it has taken a surprising amount of time and jurisprudence to settles these issues. It is now clear that the right to counsel attaches as soon as judicial proceedings have begun—including the early stages of interrogation and the preliminary hearing. See Brewer v. Williams, 430 U.S. 387 (1977). Likewise, it is well settled that, if the defendant can’t afford an attorney, the government must pay the attorney’s fees. See Powell v. Alabama, 287 U.S. 45 (1932), and Johnson v. Zerbst, 304 U.S. 458 (1938).

How do we know he’s really poor?

The indigent criminal defendant is required to submit an affidavit in which he lists his income and assets. If the defendant lies, this is considered perjury. In the federal court system, this is punishable by a fine of up to $250,000 and up to five years in jail. The Tsarnaev case is unique, however, because reporters have already dug into his background and have discovered that he has little to no money. Perjury is unlikely here.

Note that Tsarnaev is 19 years old, and so his parents are no longer considered to be financially responsible for him. Likewise, he is single, so there is no spousal income or assets to consider. If they can afford it, Tsarnaev’s family (or anyone else) can hire an attorney, of course, but they cannot be forced to pay for their adult son’s defense. Practically speaking, anyone who can afford an attorney usually chooses to hire a private attorney. While public defenders are good attorneys, they are usually overwhelmed.

Why did the Framers care? While much of U.S. jurisprudence is derived from English common law, keep in mind that the Founding Fathers were revolutionaries who were rebelling against England in some key ways. They rejected the inquisitorial system (guilt is determined by the court’s interrogation of the accused) in favor of accusatorial system, in which the state has the burden of proving the accused’s guilt. The old inquisitorial system brought unjust results for the rich and poor alike. Famously, Mary, Queen of Scots, lamented—prior to being executed for treason—that she did not know the laws of England and that she was “destitute of counsellors.” Why should I care? Oftentimes, I’ve heard people defend our justice system by saying “You’ll be glad the burden of proof is on the state and that you get an attorney IF you ever find yourself accused of a crime!” That’s true, but most of us will never commit a serious crime, so that’s not a good enough reason. Rather, I believe we continue to desire what the Founding Fathers did. We want to live in a society that requires proof, thought, care, and fairness before we deprive anyone of life, liberty, or property. We find the idea of a police state and mob rule abhorrent. We want to be sure. Unlike the criminals, we want justice—real justice, without coercion and favor. We expect more of ourselves—even when and especially when we’re wounded and angry. With that as our goal, it’s hard to imagine a better use of tax dollars.