Access to Justice

  • September 23, 2013

    by Jeremy Leaming

    UNC Law School Professor Gene Nichol earlier this year at a Harvard symposium on the legacy of Gideon v. Wainwright and the state of funding for indigent defense blasted the legal system’s treatment of the poor.

    Poor litigants, criminal or civil, more often than not are treated unequally before the law. “Despite our perpetual boasts, we turn out to be the effective adversary to equality; outposts, comforter, companion, and the better to marginalization,” Nichol said.

    This year marks the 50th Anniversary of Gideon v. Wainwright, the landmark Supreme Court case that held the Sixth Amendment’s right to counsel means that criminal defendants have a constitutional right to counsel whether they can afford it or not. That case placed a mandate on the States to ensure that poor criminal defendants are provided legal representation. But as Nichol and others have noted, such as ACS’s Caroline Fredrickson, too many States have fallen woefully short of ensuring that poor criminal defendants have access to competent counsel.

    In an interview earlier this year with ACSblog, Stephen Bright, head of the Southern Center for Human Rights, provided his thoughts, in some ways similar to Nichol’s, about the state of indigent defense. Like Nichol, Bright noted the nation’s and legal profession’s callousness toward the poor.

    Bright (pictured) said, “One would think that if the court said this is what the Sixth Amendment to the Constitution of the United States, the right to counsel, that this is what it means – that the state has to provide a lawyer that the states would have done that. But Gideon has been treated as an unfunded mandate.”

    So why have many States given short-shrift to funding of indigent defense services? Likely, Bright said, the answer lies with a society that has remained indifferent, at best, to poverty.

    “When Robert F. Kennedy was attorney general, he said the poor person accused of a crime has no lobby,” Bright noted. “That’s exactly right. There’s no constituency.”

  • September 20, 2013
     
    During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.
     
    As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."
     
    There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.
     
    Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
     
  • September 9, 2013
    Guest Post

    by Senator Sheldon Whitehouse (D-R.I.). Sen. Whitehouse is a member of the Health, Education, Labor, and Pensions (HELP) Committee, as well as the Budget Committee, Environment and Public Works Committee, Judiciary Committee and the Special Committee on Aging.

    James Madison famously observed in Federalist 39 that our American experiment depends on “the capacity of mankind for self-government.”  History has vindicated Madison’s faith in the American people, but we must not grow complacent.  Recent Supreme Court decisions, for example, have undermined Americans’ ability to participate in our system of self-government by opening the floodgates to corporate cash in our elections and eliminating the provision of the Voting Rights Act that has protected millions of Americans from discriminatory voting practices.  Another institution within our system of self-government – the civil jury – is also under attack and is disappearing, with little fanfare.  It is time to sound the alarm.

    As I recently explained in the National Law Journal, the civil jury came to the United States with the earliest colonists.  It provided a means of self-government for Americans who chafed under British rule, and its preservation was vital to the founding generation.  Consequently, the Seventh Amendment  protected access to the civil jury, which serves, in the words of Alexis De Tocqueville, as a “political institution” and “one form of the sovereignty of the people.”

    Unlike other institutions of government which can be dominated by the rich and the well-connected, the civil jury puts all citizens equal before the law.  As Sir William Blackstone observed, the jury “preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.”  The Founders wished to assure that when the executive is corrupt, when powerful interests have the legislature tied in knots, and when the press has turned against you, the hard square corners of the jury box still stand strong.

  • August 27, 2013
    Guest Post


    by Scott Michelman, attorney, Public Citizen Litigation Group Michelman wrote the plaintiffs’ successful petition to appeal in Roach v. T.L. Cannon, and will brief and argue the case before the Second Circuit.

    When big corporations have a legal problem, they usually have no shortage of legal help - from lawyers on their own payroll or from large law firms to whom they pay hundreds of dollars an hour.

    When ordinary wage-earners have a legal problem - such as being underpaid at work - obtaining relief can be a bigger challenge. Most people can't afford to hire a big law firm, and even if the amount of a legal dispute is significant to the individual, it may not be large enough to entice a for-profit lawyer to take the case.

    One of our system's most important tools for leveling the playing field and providing access to the courts is the class action. This device enables people who have been wronged in a similar way to join together to pursue relief in court. Even if the value of the case to each individual is small, the aggregation of the claims makes the case big enough for a lawyer to pursue it.

  • August 5, 2013
    Guest Post

    by Brandon L. Garrett. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, forensic science, and the law. Below, he outlines three recent Supreme Court rulings whose importance has been overshadowed by the term’s several high profile and historic decisions. This piece is cross-posted on the Harvard University Press Blog.

    With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.

    First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. In McQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.