New York Times is inching its way to the correct conclusion. In an editorial yesterday, the paper praised efforts by the Justice Department to assure that indigent lawyers have adequate counsel when facing criminal charges. The paper also noted a less remarked upon problem: the extent to which indigent folks lack counsel in the civil justice system.
I am encouraged to see the Times take aim at the problem of access to the courts and to counsel. But I urge the Times to think more broadly. Certainly adequate funding of counsel for the indigent is a top priority, but just over the horizon is an issue as significant: the crushing burden of legal fees on the middle class. Few families can put together the funds necessary to finance a vigorous defense against serious charges.
There is no talk about the economy's recovery among lawyers serving the middle class and indigent. Our potential clients are scraping the bottom of barrels that used to be filled with rain. The real estate market has collapsed, taking with it the equity loan than many folks used to pay for counsel. There is no easy credit out there. Folks are tapped out and finding it impossible to pay legal fees.
What's needed is wholesale reform of the market in legal services. Every American should have the right to appointed counsel when accused of a crime. If that yields increased costs for the criminal justice system, so be it. Lawmakers might well then be forced to consider trimming waste at the margins. It's too easy to pass laws and criminalize conduct without counting the costs.
I reprint without permission the Times's editorial below.
An Advocate for Equal Justice
Providing poor defendants effective appointed counsel is more than a constitutional obligation. It is a concrete measure of the nation’s commitment to equal justice under law. Yet indigent defense offices across the nation have been allowed to sink into crisis. They have fallen victim to insufficient financing, overwhelming caseloads and a slew of policies that hamper effective representation.
The civil legal aid system is no less challenged. Short on resources, local offices supported by the Legal Services Corporation, the federal agency that provides legal assistance for low-income Americans in civil cases, must turn away about half the eligible individuals who contact them for help with life-altering issues such as child custody or saving their homes from foreclosure.
One rare piece of good news is that Attorney General Eric Holder Jr. has made it his mission to try to narrow this gap in the administration of justice. To lead his campaign, he has hired Laurence Tribe, the prominent Harvard Law School professor and constitutional scholar.
The basic, sound idea is to look at ways indigent legal services can be improved, including by creating incentives for states to make better use of pro bono legal assistance, and help the growing number of people who represent themselves navigate the courts.
Realistically, Mr. Tribe cannot be expected to solve all the financial and other problems impeding the delivery of indigent legal services. But in applying his formidable teaching and advocacy skills, he can be a catalyst for bolstering stressed criminal and civil legal service providers and finding fresh strategies for serving more Americans with their urgent legal needs.