legal services

  • 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.”

  • April 11, 2013

    by Jeremy Leaming

    The U.S. Supreme Court that issued the opinion in Gideon v. Wainwright finding that criminal defendants have a constitutional right to counsel even if they cannot pay for it was a high court unwavering in its efforts to ensure that equal protection under the law applied even to the powerless and marginalized.

    Today’s Supreme Court, said UNC Law School Professor Gene Nichol at a recent symposium at Harvard Law School, is very different and in many respects reflects the nation’s treatment broadly of people in poverty. The present high court’s proclivity, Nichol said, is to intervene as the “sword-carrier, and lieutenant and hand-maiden, and aide-de-camp of the powerful and economically privileged."

    Nichol, speaking at a symposium on Gideon and on the need to extend more legal services to civil litigants hosted by the Harvard Law & Policy Review and ACS, gave a broad and damning assessment of the way the legal system separates the poor from everyone else.

    Fifty years ago, the Supreme Court led by Justice Hugo Black held in Gideon that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” This right applied to the states Black concluded in part because of the Fourteenth Amendments requirement that government not deprive people of liberty.

    “The Gideon decision’s obvious truth – disturbing, challenging, indicting, and still obvious in truth: ‘The right to be heard would be of little avail if it did not include the right to be heard by counsel. Even the educated and intelligent layman has small and sometimes no skill in the science of law. He in incapable of determining whether the case against him is good or bad, he’s unfamiliar with the rules of evidence, he lacks the skill and knowledge to prepare his defense though he might have a perfect one. He requires the guiding hand of counsel at every step of the proceeding.’”

    Nichol said Justice Black’s wording reminded him of the mantra spoken by his friend, the late Sen. Paul Wellstone that, “It is important not to separate the lives we lead from the words we speak.”

    The professor then turned to what he described as one most searing defects of the nation’s legal system, the treatment of poor litigants.

    “Millions of poor litigants … are denied every day in every court, in every court system, in every state at every level of this broad nation, a foundational right to a meaningful hearing, at a meaningful time before forfeiting constitutionally secured interests. The largest single defect of the American system of justice; making mockery of the phrases etched on our courthouse walls, providing the great American asterisk, the delegitimizing asterisk: Equal justice for those alone who can pay the ride of significant fare” requiring “an annotation of our boastful pledge – Liberty and Justice for half. That is too generous, I know.”

  • July 25, 2012
    Guest Post

    By Laura Abel, Deputy Director of the National Center for Access to Justice at Cardozo Law School


    If Congress leads the country over the “fiscal cliff,” people are going to have a tough time using the courts to protect their most basic rights. Pretty much everyone agrees that imposing across-the-board cuts is a bad way to make public policy. When the cuts affect the Third Branch of government, they tread on dangerous constitutional ground.

    The fiscal cliff is the popular name for the package of federal budget cuts and tax increases that Congress agreed to in the Budget Control Act of 2011. The idea at the time was that a committee, optimistically dubbed the “supercommittee,” would come up with a long-term plan to reduce the federal deficit before the package took effect. But the supercommittee was unable to come up with a solution. Now, most federal agencies face budget cuts of as much as 9% on January 1, unless Congress can agree on an alternative plan.

    The federal courts have warned that the cuts “would have a devastating and long-lasting impact on the federal courts and the administration of justice in this country.” Even without the fiscal cliff, the federal judiciary is a lean operation. In the past year alone, 1,000 court staff positions have been cut. Judge Julia S. Gibbons has testified before Congress that additional Budget Control Act cuts would limit the ability of court clerks to help members of the public with court filings. This would make the federal courts more inaccessible than ever to “pro se” litigants seeking to enforce their civil rights or file for bankruptcy. Staff shortages would also result in significant delays in processing cases, providing an unfortunate demonstration of the principle that “justice delayed is justice denied.”

    The so-called budget cuts will cost the taxpayers far more money in the long run. Judge Gibbons warns that the courts will have to furlough public defenders and reduce pretrial supervision services for low-risk offenders. The likely result is that more defendants will spend more time in prison awaiting trial, driving up prison costs.

  • August 24, 2011

    by Jeremy Leaming

    Lawmakers in Congress continue to be far more interested in protecting generous tax breaks for the nation’s wealthy at the expense of a much larger segment of the public, such as those in need of legal services.

    As The New Times’ editorial page notes in “Addressing the Justice Gap,” since the Great Recession an increasing number of people are representing themselves in civil proceedings, such as home foreclosures and landlord-tenant disputes, and research “shows that litigants representing themselves often fare less well than those with lawyers.”

    The editorial notes, however, that instead of doing more to assist the nation’s less fortunate, the government has taken a different, and devastating approach by slashing funding for legal services over the decades, and efforts are underway in Congress to cut even more. As noted here, a House committee has proposed a 26 percent cut in funding to the Legal Services Corporation (LSC), the national agency that distributes money to states for their service programs, and cuts to LSC are already being felt across the nation, with local legal services groups suffering. For Rep. Austin Scott (R-Ga.), cutting LSC services is not enough, he wants the entire agency shuttered.

    But, The Times’ editorial states, the situation need not be so dire:

    There is plenty the government, the legal profession and others can do to improve this shameful state of affairs. With the economic downturn, only around two-thirds of law school graduates in 2010 got jobs for which a law degree is required, the lowest rate since 1996. That leaves the other third – close to 15,000 lawyers – who, with financial support from government and the legal profession, could be using their legal expertise to help some of those who need representation.

    ACS and the Center for American Progress hosted an event earlier this year examining the nation’s growing justice gap and ways to address it. Video of that event is available here.

  • October 14, 2010

    A report surveying justice systems in 35 nations shows that America's system is woefully serving large segments of the society, especially the poor and middle class, as The Huffington Post's Dan Froomkin notes.

    "The Rule of Law Index," released yesterday by the World Justice Project shows that "when it comes to access to and affordability of legal counsel in civil disputes, the U.S. ranks 20 out of the 35 nations surveyed, below not only developed nations but also such countries as Mexico, Croatia and the Dominican Republic," Froomkin writes. He notes that the survey reveals that "when it comes to providing access to justice to its citizens," the U.S. ranks lowest "among 11 developed nations when it comes to providing access to justice to its citizens - and lower than some third-world nations in some categories."

    Froomkin continues:

    As part of its fact-finding, the organization polled 1,000 people in New York, Chicago and Los Angeles, and found a significant gap between the rich and the poor in terms of their use and satisfaction with the civil courts system.

    More information about the Index and the project in general is available here.

    Froomkin also noted that the Obama administration has worked to address gaping disparities among legal services that exist in various communities in part by creating the Access to Justice Initiative and selecting renowned constitutional scholar Laurence H. Tribe to lead it. At the 2010 ACS National Convention Tribe participated in a panel discussion regarding the government's role in improving legal services for the poor. Video of that panel discussion is available here

    ACS has published several recent Issue Briefs studying the troubles besetting the nation's indigent defense system. Some of those reports include: "Restoring Access to Justice: The Impact of the Iqbal and Twombly on Federal Civil Rights Litigation," "Assessing the Indigent Defense System," "A Legislative Approach to Indigent Defense Reform," "Litigation Strategies for Dealing with the Indigent Defense Crisis," and "Overcoming Defiance of the Constitution: The Need for a Federal Role in Protecting the Right to Counsel in Georgia."