Access to Justice

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.”

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.