U.S. Legal Aid System Viewed as “Legal Hell”
The discrimination observed on a daily basis in U.S. courts with the unequal access to adequate legal defense is one of the potential, main sources of individual cases of suicide, depression, frustrations, and violence. It is also one of the last civil rights issues standing. Yet legal assistance as a human rights issue is completely absent in the presidential debate. Is this because the victims of our broken justice system are not the electorate courted by the candidates ? The budget that the federal government’s Legal Services Corporation requested for the United States populated with 300 million inhabitants in 2008 was $380 million, not billion; which is about $1.26 per capita annually for legal assistance. By so depriving low-income and middle-class people of the funding desperately needed to execute the universal equal Justice granted by the Constitution, Washington is able to maintain an aristocracy-controlled society. Must we resign ourselves to living with such an anti-democratic system?
By Ndzana Seme
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"The Louisiana Legislature has allowed this legal hell to exist, fester and finally boil over," Criminal District Court Judge Arthur Hunter said, ruling from the bench that the poorest defendants in New Orleans are receiving the worst legal services as they face prison time.
"This court must take certain measures to protect the statutory and constitutional rights of indigent defendants. Hurricane Katrina is no longer an excuse, and the state has a budget surplus," the report further quoted Hunter as saying.
Arthur Hunter also said that the next month he would release 42 poor defendants from custody, and he suggested the public defender program should drop cases because it lacks the staff or money to do its job properly, the New Orleans Times-Picayune reported.
Judge Hunter’s frustration is better comprehended in view of Article eighth (Amendment VI) of the Bill of Rights that reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The 6th Amendment to the Constitution of the United States further stipulates that:
“In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defence”
Rebekah Diller is the coordinator of the Brennan Center's legislative and public education campaign to eliminate the private money restriction on legal services programs. She also works on other initiatives in the Center's Access to Justice Project.
In an article entitled Manufacturing a "Scandal" at the Legal Services Corporation published June 24, 2007 on the Huntington Post, Rebekah Diller wrote.
“Our nation promises justice for all, not just for those who can afford to pay for it…As Judge Learned Hand said, "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice."”
Current situation of “legal hell” is marked by the unfulfilled promise of justice for all, which leaves us with few reasons to reject Michael Parenti’s positions in his article A Constitution for the Few: Looking Back to the Beginning published by The International Endowment for Democracy, a foundation dedicated to promoting real democracy in the country that needs it most, the U.S.A.
Parenti had demonstrated the elitist nature of the U.S. Constitution in another 1980 essay entitled The Constitution as an Elitist Document, republished in The US Constitution edited by Bertell Ollman and Jonathan Bimbaum, in which Ollman made the following provocative statement:
“The framers did everything they could—consistent with winning acceptance for the document—to avoid placing the loaded gun of popular sovereignty in the hands of the people.”
Majority dissenting views and supporters of the US Constitution have shown that there is only a shaky ground to support Parenti’s elitist argument. Yet, it appears seriously troubling that in 2008 the United States is still lagging in terms of its courts recognizing that denial of equal legal defense is discrimination.
Which clearly means that equal legal defense, and consequently Justice for All, is still not a human right in the United States despite its widely known constitutional proclamation.
A September 30, 2003 article by Minnesota Public Radio’s Tom Robertson titled Minnesota lawyers frustrated over shortage of public defenders highlighted the following facts:
“Public defense lawyers across Minnesota are throwing up their arms in frustration. Public defenders say they're overburdened with huge caseloads. Budget cuts have forced layoffs within their ranks. And more public defenders are quitting because of stress. Some say the crisis jeopardizes the legal rights of Minnesota's poor. Public defenders are turning to the Minnesota Supreme Court and the Legislature for help.”
In a July 8, 2005 article by Washington Post Staff Writer Tom Jackman entitled Fairfax's Chief Public Defender Quits, the reporter wrote that “Fairfax County's top public defender [Joanmarie I. Davoli] has resigned after 10 months on the job, saying she does not have adequate resources to defend the poor in Virginia's wealthiest county.”
Quoting a report conducted by the National Legal Aid & Defender Association in conjunction with the State Bar of Michigan, Holland Sentinel’s Staff reports posted on the web on June 18, 2008 stated that Michigan is violating the U.S. Constitution by failing to provide competent legal representation to criminal defendants who cannot afford a lawyer.
In an article published by the American Constitution Society for Law and Policy and entitled When Public Defenders Strike: Exploring How Public Defenders Can Utilize the Lessons of Public Choice Theory To Become Effective Political Actors, United States Court District of Connecticut’s law clerk Brandon Buskey wrote:
“Our public defense systems are slowly rotting away. Since the Supreme Court’s 1963 decision in Gideon v. Wainwright, which required the states to provide counsel for indigent defendants, organizations like the National Legal Aid and Defender Association and the American Bar Association have issued major independent reports about once every five years, each concluding that systematic deficiencies plague public defense.
The clear theme of all of these studies is that the problems of indigent defense are primarily problems of money. Indeed, grossly insufficient funding is the most fundamental factor keeping indigent defense in shambles. Unfortunately, state policy makers tend to believe they can get away with such negligence, since few
Chief defenders, then, find themselves in a remarkable bind. Their position charges them with ensuring that their offices represent clients competently; yet legislative neglect has crippled their ability to do so. According to the guidelines promulgated by the American Bar Association, public defenders should only handle 150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health cases, or 25 appeals per year. However, in the nation’s largest 100 counties, indigent defenders handle an average of 530 cases annually.”
The hell is surprisingly well accepted, at least by those who reap the benefits out of it. Fairfax’s Indigent Defense Commission executive director and former public defender Richard C. Goemann, in response to quitting Chief Defender Joanmarie Davoli’s charges, stated that “Inadequate funding has been a long-standing, statewide problem, not limited to Fairfax.”
Discrimination is not limited to criminal cases only. In civil courts, the Legal Services Corporation (LSC) instituted by the Congress in 1974 to help low income people access legal assistance has shown very poor results.
Even though the LSC had instituted constraining income ceilings and a very limited number of intervention fields for applicant elligibility, it is very sad to notice in 2008 that legal assistance is not accessible to the vast majority of the so called indegents.
“Some critics simply don't like the idea that in a country that promises equal justice for all, the federal government might make some small effort to deliver on that promise. Notwithstanding the important work that LSC does -- preventing seniors from losing their homes, helping victims of domestic violence obtain protection, obtaining benefits for disabled children -- most studies (including Brennan Center for Justice white paper Access To Justice: Opening The Courthouse Door) estimate that 80 percent of the civil legal needs of low-income people still go unmet due to inadequate government funding” Rebekah Diller wrote.
It is no surprise that legal assistance as a human right is so absent in the presidential debate, since discrimination victims of our broken justice system are not the electorate courted by the candidates.
Even Barrack Obama, in his quest to secure women’s votes, would advertise himself as the one who had passed Law Raising Standards Related to Domestic Violence and the like, thus perpetuating a mindset that favors fighting violence the Hollywood way as opposed to addressing the deepest root causes of violence. (Updating this point, Barrack Obama stated in an NNPA interview that he has been talking “during the course of this campaign, about people lacking health care, about the problems of the unjust criminal justice system.")
Yet, the discrimination observed on a daily basis in U.S. courts with unequal access to adequate legal defense is one of the potential, main sources of individual cases of suicide, depression, frustrations and violence; which are ultimately used by gangs and terrorist groups to fertilize their recruiting grounds and to root violence in the cities.
In lower class populations such as Black and Latino communities, it is easy to notice a common attitude towards the police, namely distrust/rebellion.
It is difficult to view the hell - which Washington has contributed to establish when it comes to eradicating discrimination in courts by insuring constitutional equal legal defense for all - otherwise than the perpetuation of a racial, aristocracy-controlled society; otherwise than a plutocracy kept in check by its representatives who view universal equal access to legal defense as the sovereignty of the “rabble” that would threaten their actual constituents’ privileges; otherwise than a close and segregationist society that embeds structural violence.
It is difficult to understand why progessive liberals such as D-MA Senator Ted Kennedy has not been able to establish the universal equal legal defense in order for the United States to become a true democracy. His last half-hearted effort on the matter was joining R-OR Senator Gordon H. Smith in order to continue their “historic support” of LSC by soliciting signatories for a letter to CJS leaders requesting $380 million for LSC in 2008.
You read it right. LSC Budget requested for the United States populated with 300 million inhabitants in 2008 was $380 million, not billion; about $1.26 per capita annually for legal assistance. LSC budget request was $363.8 million in 2007.
In a country of the blind the one-eyed beeing kings, the LSC Press Roon in its May 9, 2007 Update was heaping praise on Ted Kennedy in terms of “ For years they have sponsored or signed letters to Senate appropriators requesting budget increases for LSC. Last year, a bipartisan group of 52 Senators joined Kennedy and Smith in requesting a $31.9 million increase for LSC in FY 2007.”
Despite these repeated failures in addressing one of the last discrimination issue still standing, the voice of status quo is what we heard Ted Kennedy expressing in his speech delivered on April 10, 2007 on the Senate floor in honor of retiring American Bar Association government affairs director Robert D. Evans
“Perhaps what people will remember most is Bob's career-long effort to guarantee access to justice for all through the development and preservation of the Legal Services Corporation. He has improved the administration of justice, and brought greater access to legal representation and American justice for all persons, regardless of their economic or social condition. Bob will be greatly missed.”
Chair of the Senate Health, Education, Labor, and Pensions Committee, which use to vet presidential nominees to the LSC board, Sen. Kennedy was unable to show a record of having puched through an agenda for universal equal legal aid. D-NY Sen. Hillary Rodham Clinton is also a member of the committee. No mention was made of the popularly needed universal equal legal assistance in her presidential agenda.
Forsaken by their representatives who serve aristocratic interests instead, and despised by politicians who find no business in the prison population, indigent and middle-class people have no other hope than in human rights activists, citizen-driven journalists and thinkers.
Many American individuals, foundations and organizations have been pushing the agenda for universal equal legal assistance for years. It is obvious that the stakes being high in terms of thread of a possible popular sovereignty, none of these human rights activists was able to corrupt (the softer word imposed by the ruling aristocracy is lobby) representatives in Washington.
We are joining the noble human rights struggle for universal equal legal defense. We have created a web journalism project called Legal Aid Watch (LAW). With LAW, we intend to involve independent journalists and active citizens in the struggle in order to demonstrate that denial of access to adequate legal assistance is discrimination. We will give you more information about the LAW project if ever we are able to secure charitable donations.
©2003 The African Independent, Inc. All rights to republication are reserved.
