Access to Justice

  • May 4, 2012

    by Jeremy Leaming

    Slowly the economy continues to recover, with jobs being added over the past 26 months, but that progress is amazing in an atmosphere where one of the two major political parties is concerned only with advancing the outlandish interests of the nation’s super wealthy.

    The Great Recession, underway before the Obama administration was in existence, has shoved millions into poverty and the gap between the nation’s top 1 percent and everyone else is the widest since the 1920s. Last fall, the Census Bureau reported that the number of people in poverty is at its highest in more than 50 years. As noted earlier this week the super wealthy are increasingly out-of-touch, indeed one retired multimillionaire is pushing a book that calls for more economic inequality.

    But how did the country arrive at this point where the middle class is shrinking, the poor is growing and a tiny group of people are amassing most of the wealth? Because, according to some, the nation’s conservative party has been bought by the out-of-touch super wealthy.

    The mainstream media, in the name of objectivity, will continue to blame both parties for gridlock in Washington, but a growing number of economists, academics, lawyers, activists, and others concerned about the well-being of all people are pushing back against that tired line.

    Thomas E. Mann and Norman J. Ornstein, who have studied Congress for several decades, say the Republican Party is to blame for pushing fantastical policy and refusing to budge from it, therefore creating an atmosphere where progress or change is difficult to foster.

    “The GOP has become an insurgent outlier in American politics, Mann and Ornstein write for The Washington Post. “It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.”

    One of the group’s to blame for the Republican Party’s unmovable concern about the nation’s super wealthy is Grover Norquist’s Americans for Tax Reform, which pushes conservative lawmakers to sign a pledge against raising any taxes. Norquist (pictured) is all about policy that starves the federal government of revenues, so policies to help the less fortunate dwindle, because those are not the people Norquist or the Republican Party are concerned with.

    In his May 4 column for The New York Times, economist Paul Krugman notes the work of Mann and Ornstein, writing, “Specifically money buys power, and the increasing wealth of a tiny minority has effectively bought the allegiance of one of our two major political parties, in the process destroying any prospect for cooperation.”

    “And the takeover of half our political spectrum by the 0.01 percent is, I’d argue, also responsible for the degradation of our economic discourse, which has made any sensible discussion of what we should doing impossible,” Krugman continued.

    In a piece last year for Rolling Stone Tim Dickinson, said the party of Ronald Reagan has “undergone a radical transformation, reorganizing itself around a grotesque proposition: that the wealthy should grow wealthier still, whatever the consequences for the rest of us.”

  • April 6, 2012
    Guest Post

    By Laura Abel, Deputy Director, National Center for Access to Justice. This piece is cross-posted at NCAJ’s blog.


    The Department of Justice has released startling evidence that language barriers are leading to serious injustices in courts in North Carolina. In a March 8 letter, DOJ warned North Carolina that its ongoing failure to provide court interpreters in civil cases, and in some criminal cases, violates the federal Civil Rights Act, which bars courts and other recipients of federal funding from providing worse services to people on the basis of English language ability.  

    DOJ reports that prosecutors in Wake and Durham counties ask people with limited English proficiency to plead guilty and then, assuming the role of “interpreters,” convey the guilty pleas to the courts. A judge relying solely on “prosecutorial interpreting” cannot know whether the person is even aware that a guilty plea is being entered, much less whether he understands the charges and consequences. When the federal government then deports the person, it cannot know whether it is deporting an innocent person. 

    The quality of justice is equally in doubt in civil cases. In 2010, a mother in Wake County lost permanent custody of her children after a trial in which she struggled to understand basic facts because she had limited command of the English language. Although she told the judge about her language difficulty, the court provided no interpreter. She also had no lawyer to help. Communication was so poor that at the end of the case she did not even understand that the judge’s ruling would cause her to lose her children.

  • March 26, 2012
    Guest Post

    By Mary Schmid Mergler, senior counsel for The Constitution Project’s Criminal Justice Program. Mergler is the coauthor with Christopher Durocher of the ACS Issue Brief previewing several several of this term's Supreme Court cases, The ‘Right-to-Counsel Term.’"


    This week the Supreme Court issued three critically important decisions implicating the constitutional right to counsel. Martinez v. Ryan affects the right to counsel during the state collateral appeal process, while Lafler v. Cooper and Missouri v. Frye will impact the right to counsel long before appeal, before trial even, during plea negotiations. 

    Martinez v. Ryan

    As a fundamental rule in post-conviction review of state criminal convictions, a federal court cannot consider claims that were denied in state court based on an established state procedural rule—a doctrine known as procedural default. The only way for the federal court to consider a claim that has been procedurally defaulted is to find that “cause” existed to excuse the default and “prejudice” resulted.  Based on the Supreme Court’s decision in Coleman v. Thompson, attorney errors during collateral proceedings do not constitute “cause” to excuse procedural default, since no constitutional right to counsel on collateral appeal exists. 

    In Martinez’s case, the first time he was permitted under Arizona law to raise an ineffective-assistance-of-trial counsel (IATC) claim was on collateral appeal; Arizona prohibits IATC claims from being raised on direct appeal. However, without Martinez’s consent, the attorney appointed to represent him on collateral appeal waived his IATC claim, so when he raised it in a successive state petition, it was denied for not having been raised in the initial appeal. And when he subsequently raised it in a federal habeas petition, it was denied based on the doctrine of procedural default. 

  • March 22, 2012

    by Nicole Flatow

    The U.S. Supreme Court significantly expanded the right to counsel in a pair of decisions issued Wednesday that established defendants’ right to the effective assistance of a lawyer during plea negotiations.

    “Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the five-justice majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

    Kennedy added that the right to effective assistance of counsel applies to “all ‘critical’ stages of the criminal proceedings.”

    About 97 percent of convictions in federal court are the result of plea bargains and not a trial, according to The New York Times.

    Widener University law professor Wesley M. Oliver told The Times the decisions constitute “the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.”

  • March 19, 2012

    by Nicole Flatow

    The Senate’s deal last week to confirm 14 judicial nominees over the next several months ensures that at least some long-pending nominees will finally get a vote. But even if all of these individuals are confirmed (which they likely will be), this would represent “just a fraction of the needed judges,” write three House members in an op-ed in Politico.

    Translation: the vacancy crisis on the federal courts persists. And among the overlooked consequences of the persistently high vacancy rate is that it harms our economy.

    “Simply put, they [vacancies] are bad for business,” write Reps. Charles Gonzalez, Emanuel Cleaver II and Judy Chu, the chairs of the Congressional Hispanic Caucus, Congressional Black Caucus and Congressional Asian Pacific American Caucus. “While litigants’ cases remain pending, they must put their lives — and their business plans — on hold. This uncertainty prevents business owners from making the needed investments to create jobs.”

    The Atlantic’s Andrew Cohen elaborates: