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.”
Turning to the civil legal system, Nichol argued that we have made it incredibly difficult, if not impossible for people mired in poverty to access the courts. He noted later that the system disproportionately harms minorities and their communities.
“We have created overarching tribunals – state and federal – made them the only effective means for resolving a huge array of civil controversies,” he said. “We have ensured in turn that they are complicated, mysterious, cumbersome, professionally expensive, technical, adversary. We could of course have done otherwise.”
Other democratic nations, however, have recognized the obvious truth that equality for all is a farce if a large segment of society is shut out. Our nation, Nichol said is the outlier.
“Despite our perpetual boasts, we turn out to be the effective adversary to equality; outposts, comforter, companion, and the better to marginalization.
Toward the end of his talk, Nichol, said the “massive denial of legal equality and opportunity is echo of a much larger one, a broader one that dominates and is the largest transgression of America life. In the richest nation on Earth, the richest nation in human history, 16 percent of us live in wrenching poverty. This morning the raw numbers – more poor people than at any other moment in the United States’ long history. Our poverty is skewed by race, 30 percent of African Americans, Latinos and Native Americans are poor; it is skewed by age, the youngest among us, the most vulnerable, are the poorest – 23 percent of American kids live poverty, 35 percent are children of color.”
The child poverty numbers, Nichol noted, are far greater than any comparable, advanced democracy.
“We are the richest, the poorest, the most unequal nation on Earth,” Nichol declared. It is a reality that does indeed make our lofty pronunciations on equality shameful. We do, however, “talk a good game, the best,” Nichol said.
For more on the nation’s criminal indigent defense system, see ACS resources here. The Brennan Center for Justice also released a report this week revealing how the tattered indigent defense system has help swell the country’s prisons, leading to an era of mass incarceration.