Access to Justice

  • 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.”

     

  • March 18, 2013
    Guest Post

    by Stephen B. Bright and Sia M. Sanneh. Bright teaches at Yale Law School and is President and Senior Counsel of The Southern Center for Human Rights in Atlanta. Sanneh is the Senior Liman Fellow at Yale Law School and an attorney with the Equal Justice Initiative in Alabama. 


    Exactly 50 years ago, in Gideon v. Wainwright, the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person “stands equal before the law.” In later decisions, the Court ruled that a poor person facing any loss of liberty must have a lawyer “so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.”And yet, a half century later this right is violated every day in thousands of courts across the nation, at every stage of the process.

    In our forthcoming essay, Fifty Years of Defiance and Resistance After Gideon v. Wainwright, to be published in the Yale Law Journal, we chronicle the day-to-day denial of counsel in counties throughout the country; the refusal of governments to provide adequate funding for lawyers for the people they seek to convict, fine, imprison and execute; the complicity of judges in the denial of counsel; the enormous and unchecked power of prosecutors to decide cases, including sentences, often with little or no input from defense counsel; and the Supreme Court’s decision to paper over and ignore violations of the right to counsel instead of correcting them.

    As we argue in our essay:

    The cost of this one-sided system is enormous. Innocent people are convicted and sent to prison while the perpetrators remain at large. Important issues, such as the system’s pervasive racism—from stops by law enforcement officers to disparate sentencing—are ignored. People are sentenced without consideration of their individual characteristics, allowing race, politics, and other improper factors to influence sentences. Over 2.2 million people—a grossly disproportionate number of them African Americans and Latinos—are in prisons and jails at a cost of $75 billion a year. Nearly an additional five million people are on probation, parole, or supervised release. Over seventy thousand children are held in juvenile facilities. Even those who have completed their sentences may be deported, denied the right to vote, dishonorably discharged from the Armed Forces, denied public benefits, and denied business or professional licenses. Reentry into society is extremely difficult, extending the costs to the families and communities of those who have been imprisoned.

    There are expressive costs as well. A system in which all of the key actors routinely ignore one of its most fundamental constitutional requirements is not a system based on the rule of law, no matter what it claims to be. When those actors shirk their constitutional obligations and bring the immense power of the state down most heavily on African Americans and Latinos, people cease to have confidence in the courts. The system lacks legitimacy and credibility and is undeserving of respect. For this to change, courts, legislatures, executives, and members of the legal profession will need to respond with a sense of urgency and commitment to justice that has been missing in most places during the last fifty years.

  • March 12, 2013

    by Jeremy Leaming

    While President Obama has advanced some eloquent calls for expanding equality, his administration must take more action to ensure equality in the workforce, according to a new ACS Issue Brief.

    Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

    Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

    The authors also cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

    And it’s not just the lower courts that have made it difficult for workers to challenge employer malfeasance, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

    “The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.

  • March 11, 2013

    by E. Sebastian Arduengo

    The Financial Industry Regulatory Authority or FINRA recently found that Charles Schwab, violated FINRA consumer protection rules by including provisions in customer agreements where customers waived their right to assert claims through the class action mechanism. The punishment for trying to structure a customer agreement that effectively allows Schwab to cheat their customers without fear of repercussion? A slap on the wrist.

    FINRA's weak action was a result of the U.S. Supreme Court's opinion in AT&T v. Concepcion. The Court held that arbitration agreements that waived a party’s ability to bring a class action must be enforced, even if they were in “take it or leave it” contracts of adhesion, where the consumer had no choice but to agree if they wanted cell phone service. At the time, The New York Times noted “the decision … appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do … is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.”  

    This brings us back to the FINRA decision, which is a perfect application of the litigation strategy outlined by The Times, and shows why Concepcion was such a terrific decision for corporate America (not so much for the rest of us). In direct response to the Supreme Court’s ruling in Concepcion , Schwab put new waiver provisions in their 2011 customer agreements, which covered close to seven million customers. The waivers that they put into the 2011 customer agreements were worded such that any customer claim against Schwab had to be arbitrated “solely on an individual, case-by-case basis.”