Access to Justice

  • April 15, 2013

    by Jeremy Leaming

    Despite the lofty rhetoric to the contrary, the Obama administration has failed to help the scores of Americans thrown out of their homes because of rampant foreclosure fraud. The administration instead chose to try to put a sheen of due diligence on a federal effort to get to the bottom of what David Dayen for Salon calls “the largest consumer fraud in the history of the United States.”

    With the nation’s economy still hobbled by high unemployment and a growing gap between the superwealthy and everyone else, the U.S. Treasury Department recently revealed a pathetic settlement with some of the shady bankers behind the criminal foreclosure schemes that fails to provide little if any help to the millions of victims of the tawdry financial machinations. Part of the problem, as Dayen reports, centers on the fact that the federal government allowed consultants hired by banks to conduct so-called independent reviews of millions of foreclosures. The consultants, Dayen continues, made millions and only completed a tiny portion of “independent reviews” requested by scores of aggrieved homeowners. When the Treasury settled with the bankers it announced the “vast majority" of borrowers  – 3.4 million -- will receive paltry sums, like $300 or less.

    But the Treasury Department’s Office of Comptroller of the Currency (OCC) likely didn’t expect U.S. Senators to dig much into the obviously overblown and flawed review of the millions of foreclosure victims. And they likely were not expecting Elizabeth Warren, one of the nation’s most recognizable and passionate spokespersons on behalf of the middle class, to be holding a U.S. Senate seat and a committee position to zero in on their woefully or intentionally inept handling of the foreclosure crisis. 

    But last week, Sen. Warren (D-Mass.), former Harvard Law School Professor, longtime consumer rights advocate and driving force behind the creation of the Consumer Financial Protection Bureau did just that. And it was not the first time the senator has used her platform to highlight the federal government’s bungling of the foreclosure crisis. Last week, as TPM’s Sahil Kapur reported Warren has in just a few months in the Senate “seized opportunities to highlight questionable banking practices an ostensibly lax regulatory response, a chamber frequently criticized for its coziness with Wall Street.”

    During a subcommittee hearing Warren, who as Dayen notes has “a grass-roots army of enthusiastic supporters” and “makes headlines crossing the street,” blasted the OCC regulators for “withholding information they said they possessed about improper foreclosures or other abusive financial practices from victims of those practices seeking recourse in court,” Kapur reported.

    The regulators told Warren they had not made a decision about what information they will make public about criminal foreclosures.

    “So you have made a decision to protect the banks but not a decision to tell the families who were illegally foreclosed against?” Warren asked the regulators.

  • April 11, 2013

    by Jeremy Leaming

    The U.S. Supreme Court that issued the opinion in Gideon v. Wainwright finding that criminal defendants have a constitutional right to counsel even if they cannot pay for it was a high court unwavering in its efforts to ensure that equal protection under the law applied even to the powerless and marginalized.

    Today’s Supreme Court, said UNC Law School Professor Gene Nichol at a recent symposium at Harvard Law School, is very different and in many respects reflects the nation’s treatment broadly of people in poverty. The present high court’s proclivity, Nichol said, is to intervene as the “sword-carrier, and lieutenant and hand-maiden, and aide-de-camp of the powerful and economically privileged."

    Nichol, speaking at a symposium on Gideon and on the need to extend more legal services to civil litigants hosted by the Harvard Law & Policy Review and ACS, gave a broad and damning assessment of the way the legal system separates the poor from everyone else.

    Fifty years ago, the Supreme Court led by Justice Hugo Black held in Gideon that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” This right applied to the states Black concluded in part because of the Fourteenth Amendments requirement that government not deprive people of liberty.

    “The Gideon decision’s obvious truth – disturbing, challenging, indicting, and still obvious in truth: ‘The right to be heard would be of little avail if it did not include the right to be heard by counsel. Even the educated and intelligent layman has small and sometimes no skill in the science of law. He in incapable of determining whether the case against him is good or bad, he’s unfamiliar with the rules of evidence, he lacks the skill and knowledge to prepare his defense though he might have a perfect one. He requires the guiding hand of counsel at every step of the proceeding.’”

    Nichol said Justice Black’s wording reminded him of the mantra spoken by his friend, the late Sen. Paul Wellstone that, “It is important not to separate the lives we lead from the words we speak.”

    The professor then turned to what he described as one most searing defects of the nation’s legal system, the treatment of poor litigants.

    “Millions of poor litigants … are denied every day in every court, in every court system, in every state at every level of this broad nation, a foundational right to a meaningful hearing, at a meaningful time before forfeiting constitutionally secured interests. The largest single defect of the American system of justice; making mockery of the phrases etched on our courthouse walls, providing the great American asterisk, the delegitimizing asterisk: Equal justice for those alone who can pay the ride of significant fare” requiring “an annotation of our boastful pledge – Liberty and Justice for half. That is too generous, I know.”

  • March 22, 2013
    Guest Post

    by Victoria Ni, Senior Attorney, Public Justice. This piece is cross-posted at Public Justice’s blog.

    The U.S. Supreme Court has issued its first-ever decision interpreting the 2005 Class Action Fairness Act.

    On March 19, the high court ruled 9-0 that courts should disregard written promises by plaintiffs who are trying to represent a class in state court that the class will seek damages less than $5 million -- the amount that can trigger federal court jurisdiction over a case.

    The narrow decision in Standard Fire Insurance Co. v. Knowles means that plaintiffs in a proposed class action will not be able to agree in writing to a damage cap in order to stay in state court. But it does nothing to clarify the debate over how courts should figure out how much money really is at stake in a lawsuit, which determines in part whether the defendant may move the case to federal court. This matters deeply to some defendants because federal courts are perceived to be more friendly to business interests.

    We joined Public Citizen on an amici brief in the case to argue against a broad approach by the Court that could have undermined legitimate litigation choices by plaintiffs to protect the interests of the class.

    So even though the plaintiffs lost, the good news is that the Court did not take a broad approach and refused even to acknowledge the defendant's repeated attempts to characterize the plaintiff's stipulation as an underhanded effort to evade federal jurisdiction. The decision did not open the door to second-guessing of the myriad strategic decisions that go into filing a lawsuit; it simply focused on whether the stipulation was binding on the proposed class, finding it was not.

  • March 22, 2013

    by Heejin Hwang

    “Clarence Earl Gideon, defend yourself.” With those words fifty years ago, Abe Fortas, who represented Clarence Gideon’s appeal in front of the Supreme Court, highlighted the isolating circumstances regularly faced by indigent defendants without representation. But upon its unanimous ruling in Gideon v. Wainwright, the Supreme Court foundthat all citizens -- rich or poor -- were constitutionally guaranteed a right to counsel, declaring that no one facing criminal charges would have to navigate the legal system alone.

    As we commemorate the legacy of Gideon this week, however, our criminal justice system continues to abandon defendants, and defenders, alike. Delivering one of the keynotes at ACS’s inaugural Student Convention in early March, Stephen Bright, President and General Counsel of the Southern Center for Human Rights, spoke of his clients’ hopelessness. For example, he noted the people with cases before the Texas Supreme Court, 92 percent of them do not have a lawyer.  One homeless woman on trial, Bright said, chose to go to jail, because at least then she would be fed and “sheltered.”

    As noted yesterday during a national ACS symposium on Gideon several experts said too many states have proven obstacles to ensuring Gideon’s promise. Recently, Attorney General Eric Holder declared that “America’s indigent defense systems exist in a state of crisis” and announced $1.8 million in funding to “improve access to criminal legal services and strengthen indigent defense across the nation.” This is promising, but more action is needed to ensure that states are aware of the funding and spend it appropriately. From 2005 to 2010, the Department of Justice administered 13 grant programs to support indigent defense systems; yet, a 2012 Government Accountability Office (GAO) report stated that “among the 9 grants …, two-thirds or more of state, local, and tribal respondents … reported that they did not use these funds for the specified purpose, due to competing priorities.” Moreover, “no more than 54 percent of grantees or public defender offices responding to GAO’s surveys were aware that such funding could be used to support indigent defense.”

    ACS’s inaugural Student Convention brought together nearly 200 law students from across the country and focused on the state of indigent defense 50 years after Gideon.  Speakers and practitioners celebrated the landmark case but also took an unabashedly introspective look at themselves, rallying their colleagues to take their constitutional responsibility more seriously.

  • March 21, 2013

    by Jeremy Leaming

    People mired in poverty do not make a powerful political constituency. Indeed they are and remain marginalized, partly because one of the nation’s major political parties is beholden to the interests of the superrich and obsessed with slashing entitlements.

    So 50 years after the Supreme Court ruled in Gideon v. Wainwright that it is a fundamental right for indigent defendants in criminal trials to be provided counsel, it is hardly surprising that far too many states have shirked their constitutional obligation and made a shameful mess of the nation’s indigent defense system.

    In the landmark opinion, Justice Hugo Black cited the text of the Sixth Amendment that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” Black also rejected earlier Supreme Court precedent that held the Sixth Amendment’s call for a right to counsel for indigent defendants could not be applied to the states. Instead, Black found that the right to counsel was a fundamental one that states are obligated to protect, because of the Fourteenth Amendment, which bars the states from depriving people -- even those with little means or the marginalized -- of liberty.

    Many leading constitutional scholars and public interest groups have long called for Congress to do more to ensure that the states fulfill a constitutional obligation. They’ve done so because many states have underfunded public defenders' offices or passed laws requiring indigent defendants to pay fees to obtain a public defender.

    In an ACS Issue Brief, Stephen Bright, president and senior counsel of the Southern Center for Human Rights, and Lauren Sudeall Lucas, a law professor at Georgia State University, called on federal lawmakers to seriously step up efforts to ensure the promise of Gideon:

    The federal government could take an active role in improving state-run indigent defense programs by: (1) making grants directly to state or public interest programs demonstrating best practices or attached to certain minimum requirements regarding training, caseloads, and supervision; (2) conditioning funds awarded to law enforcement and prosecution agencies on a showing that the indigent defense system has reached a satisfactory level of functioning; and (3) establishing a National Center for Defense Services, similar to the Legal Services Corporation (LSC). The federal government has funded training, but its limited value in a system that suffers from such great deficiencies must be recognized. The federal government could also seek the authority to bring lawsuits to compel states to comply with the Sixth Amendment and support private litigation efforts by filing of amicus briefs. All of these tools will likely be necessary to vindicate the Constitution in states like Georgia where improvements were slow in coming and are still woefully inadequate almost 50 years after Gideon was decided.

    University of Michigan Law School Professor Eve Brensike Primus in an ACS Issue Brief said the Department of Justice should also become more active in this area, arguing for a law that would “create the possibility of federal enforcement actions initiated by the DOJ against state actors who systematically violate defendants’ constitutional right to effective counsel. In these federal enforcement actions, DOJ would be authorized to seek appropriate equitable relief, including injunctive relief, to stop states from engaging in practices that result in these systemic violations.”