Access to Justice

  • February 19, 2013
    Guest Post

    by U.S. District Court Judge Robert W. Pratt, Southern District of Iowa

    In late January, U.S. Sen. Tom Harkin (D-Iowa) announced he would retire when this session of Congress ends in December, 2014. I have known Tom Harkin since we worked together as young lawyers at the Polk County (Des Moines, Iowa) Legal Aid Society. The first paragraph of any article about Harkin must mention the Americans with Disabilities Act, the landmark civil rights legislation outlawing discrimination against those with disabilities passed in the congress of 1989-90. This is as it should be because that law has literally changed the face of America but there is so much more, however, that most people do not know about his work.

    While at Polk County legal aid as a young lawyer he lobbied the Iowa legislature to pass the Uniform Consumer Credit Code, lobbied to eliminate the sovereign immunity for tort liability for governments, worked against those who wanted to raise the interest rates for consumers and challenged in the Iowa Supreme Court a loitering ordinance that was used indiscriminately against the poor.

    Although Iowa is now a politically competitive state, it was not always so.  From the time of the Civil War, just as southern states were solidly Democratic, Iowa was solidly Republican.  It was once common wisdom that “Iowa would go Democratic when hell went Methodist.” Remarkably   Harkin, during his political career has defeated five incumbent members of Congress, and is the only Democrat in Iowa’s history to be re-elected to the U.S. Senate. Along the way he has helped Iowa’s state Democratic Party to be one of the most progressive and best organized in the country. Harkin’s political legacy in Iowa is secure because of that and also because so many of his former staff and campaign people are prominent in today’s progressive movement.         

  • February 1, 2013
    by E. Sebastian Arduengo
    Much was made of Wednesday’s Senate hearing on guns. While there has already been extensive coverage of emotional moments at the hearing, like the heated exchange between Patrick Leahy (D-Vt.) and National Rifle Association President Wayne LaPierre about universal background checks, or former Congressman Gabrielle Giffords opening statement, the testimony of Gayle Trotter of the Independent Women’s Forum was undoubtedly the most outrageous. She started out her testimony by arguing that guns were the great equalizer for women, because “hand-to-hand combat” favors men. Never mind that there are commercially available non-lethal protection options out there, like mace and tasers. But, that was only the tip of the iceberg for Ms. Trotter, who later said that women like the way that AR-15s look (in fact it’s her gun of choice), and that women need high-capacity magazines for situations where two, three, or four attackers are coming and she needs enough firepower to kill them all. A couple of hours into the hearing, she got to explain her view of Second Amendment constitutional theory.
    She testified that as a woman, she thought it was important not to put an undue burden on women’s Second Amendment rights to choose to bear arms to defend themselves. Because, that’s what the Second Amendment was about - choice. If Ms. Trotter knew how the undue burden standard from Planned Parenthood v. Casey has actually been applied in the reproductive rights sphere, she wouldn’t be so eager to analogize it to gun rights, which have enjoyed a standard of higher scrutiny since the Heller II decision. In fact, nearly all of the pro-gun witnesses argued that there were already a number of gun-control laws on the books that were already quite burdensome, like having to submit to a background check when purchasing a firearm from a federally-licensed dealer. The pro-gun witnesses added that these laws that are already on the books were simply not being enforced!
  • January 10, 2013

    by Amanda Simon

    This year marks the 50th anniversary of Gideon vs. Wainwright, a landmark case in which the U.S. Supreme Court reaffirmed the right to counsel for criminal defendants under the Sixth Amendment. To kick off our work on this important anniversary, ACS has released a new Issue Brief analyzing five Supreme Court decisions from last term that affect the right to counsel. The brief “Are We Closer to Fulfilling Gideon’s Promise?: The Effects of the Supreme Court’s ‘Right-to-Counsel Term’” was written by Christopher Durocher, government affairs counsel at The Constitution Project.

    In its unanimous opinion on March 18, 1963, the Court ruled “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

    Durocher explains why the most recent Court session expands on Gideon in the Issue Brief, writing“Supreme Court handed down decisions in five cases that open the door to expanding and better protecting the availability of effective counsel in both the pre-trial and post-conviction stages. These decisions recognized the realities of our 21st century criminal justice system and proved that the Court’s last term deserved the sobriquet the ‘Right-to-Counsel Term.’”

    However, when it comes to indigent defense, Durocher, also notes the strain on our system, noting, “It is well-documented that indigent defense providers across the nation are overworked and have too few resources.”

  • January 2, 2013

    by John Schachter

    Steven Spielberg’s “Lincoln” has earned rave reviews, myriad award nominations and more than $132 million at the box office. All this for a 2½ hour movie about politics. While other films with government and politics at their core often struggle to draw sizable audiences, “Lincoln” has transcended the genre and demonstrated mass appeal. That’s likely because of the superb acting and script – and the moral force behind the film’s focus, the fight to end slavery in America once and for all..

    Tuesday, January 1, marked the 150th anniversary of the signing of the Emancipation Proclamation, a document Fredrick Douglass praised as “the most important document ever issued by an American president,” according to historian Eric Foner (in his book The Fiery Trial).

    Douglass was no Lincoln apologist; he recognized the great man’s flaws and imperfections. But Douglass also got to know Lincoln and appreciate the great pressures under which he operated. When it came to the Emancipation Proclamation, Douglass understood the content, the context and the confines. In his “Oration in Memory of Abraham Lincoln,” delivered at the unveiling of the Freedmen's Monument in Washington D.C. in memory of Lincoln, on April 14, 1876, Douglass said:

    “Can any colored man, or any white man friendly to the freedom of all men, ever forget the night which followed the first day of January, 1863, when the world was to see if Abraham Lincoln would prove to be as good as his word? I shall never forget that memorable night, when in a distant city I waited and watched at a public meeting, with three thousand others not less anxious than myself, for the word of deliverance which we have heard read today. Nor shall I ever forget the outburst of joy and thanksgiving that rent the air when the lightning brought to us the emancipation proclamation. In that happy hour we forgot all delay, and forgot all tardiness, forgot that the President had bribed the rebels to lay down their arms by a promise to withhold the bolt which would smite the slave-system with destruction; and we were thenceforward willing to allow the President all the latitude of time, phraseology, and every honorable device that statesmanship might require for the achievement of a great and beneficent measure of liberty and progress.”

    Though sectional conflicts over slavery certainly contributed to the war, ending slavery was not an initial goal. The National Archives notes that that “changed on September 22, 1862, when President Lincoln issued his Preliminary Emancipation Proclamation, which stated that slaves in those states or parts of states still in rebellion as of January 1, 1863, would be declared free.” Just 100 days later, seeing no action from the rebelling states, Lincoln issued the official Emancipation Proclamation declaring “that all persons held as slaves” within the rebellious areas “are, and henceforward shall be free.” While the proclamation did not end slavery in the United States, it did fundamentally transform the character of the war and added moral force to the Union cause while strengthening the Union both politically and militarily.

    Eric Foner wrote in The New York Times that to some extent the Emancipation Proclamation “embodied a double emancipation: for the slaves, since it ensured that if the Union emerged victorious, slavery would perish, and for Lincoln himself, for whom it marked the abandonment of his previous assumptions about how to abolish slavery and the role blacks would play in post-emancipation American life.”

    Across the nation, celebrants have many opportunities to appreciate the value and meaning of the Emancipation Proclamation. The Library of Congress is displaying Lincoln’s first handwritten draft, on display for six weeks starting Jan. 3 in "The Civil War in America" exhibit. And the National Museum of African American History and Culture at the Smithsonian has an exhibit called "Changing America," which recounts both the 1863 emancipation and the 1963 March on Washington for Civil Rights. The exhibit includes a rare signed copy of the 13th Amendment to the Constitution that abolished slavery and is the centerpiece of the Spielberg film. What a great opportunity to see and appreciate the reality of what's been portrayed on the movie screen!

  • December 18, 2012
    Guest Post

    by Laura Abel, Deputy Director, National Center for Access to Justice at Cardozo Law School

    Recently the Justice Department’s groundbreaking civil rights work received a boost when a federal district court allowed it to proceed with its civil rights case against the Maricopa County, Arizona sheriff, Joe Arpaio. The Justice Department’s suit alleges that the Sheriff is harming the Latino community in a dozen mean-spirited and unlawful ways, including:  race-based stops, searches and arrests; the denial of health care and other services in the county jail for prisoners with limited proficiency in English; and retaliation against people who dare to complain. The Department’s complaint provides some insight into the human cost. For example, it tells the story of four Latino men, whose car was stopped even though they had not violated any traffic laws:  the officers “ordered the men out of the car, zip-tied them, and made them sit on the curb for an hour before releasing all of them.”  And it explains that in the county jail, officers “routinely make announcements only in English” about such fundamental things as the “time … to go outdoors, receive clothing, or eat.”

    Investigations into serious civil rights abuses have been one of the hallmarks of Attorney General Eric Holder’s tenure. The Justice Department’s investigations into language access problems in state courts and law enforcement agencies around the country have been particularly successful, leading to major improvements in many states.  As a result of civil rights investigations in Colorado and Rhode Island, for instance, the courts in both states agreed to provide interpreters for limited English proficient individuals in all civil cases.