Limited Nature of Criminal Justice Reform

Originally Published March 13, 2015

One of the more ballyhooed stories of late is the news that Left and Right have joined forces to reform our failed criminal justice system. The union comes in the form of a coalition led by Koch Industries and the Center for American Progress. It’s a worthwhile effort that has been met with some skepticism: as Molly Ball notes in the Atlantic, the Koch Brothers – often on the receiving end of litigation – have a direct financial interest in relaxed criminal penalties.

But it is not unthinkable that they would have benevolent ends. In the last decade, Ball notes, “Charles Koch has quietly made contributions amounting to seven figures to the National Association of Criminal Defense Lawyers, money that has been used to provide lawyers for poor defendants.” Call it PR if you insist, but there’s no denying the sorry state of indigent defense and legal aid in the US. Public defenders are underfunded; private attorneys who participate in public defense are underpaid; criteria for representation are too restrictive, excluding many defendants simply because they receive unemployment, disability, or veterans’ benefits.

The justice system is exclusive. It favors the rich. This problem is not, however, limited to criminal justice.

It is newsworthy that Left and Right teamed up to fight our unjust criminal justice system in the same way it would be newsworthy if Thor and Loki teamed up to fight the Dark Elves. The enemy is common, recognizable, uncontroversial. The Right has already relaxed its antiquated, stodgy position on criminal punishment in the face of ballooning prison costs. Ball notes many bipartisan efforts already in progress:

Senator Rand Paul has teamed up with Democrat Cory Booker to propose making it easier for juvenile and nonviolent offenders to have their records expunged, while Republican Mike Lee is working with Democrat Dick Durbin to reduce mandatory-minimum sentences. Republican Representative James Sensenbrenner of Wisconsin—who once led the charge to impeach Bill Clinton and was the principal proponent of the Patriot Act—is working on a comprehensive package of reforms to address such issues as asset forfeiture, sentencing disparities, and the restoration of rights to young offenders.

These are hard problems that merit the attention. But there are problems of equal impact in our civil justice system that receive far less. The courts are not prohibitively expensive for criminal defendants alone; they are prohibitively expensive for near everyone. The asymmetry of power between criminal defendants and the government exists also between plaintiffs and repeat civil defendants – the Koch-sized megacorporations and insurance companies who can afford to weather slow, costly litigation.

So why do we have such a distinction between civil and criminal legal services – a distinction, writes longtime public defender James Neuhard, that few other countries impose? It is true that the Constitution only sets out protections for criminal defendants, but the Supreme Court has recognized the same need in civil cases. Look at the Court’s opinion in Gideon v. Wainwright, the landmark ruling that guaranteed counsel in criminal prosecution:

Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth… That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indication that lawyers in criminal courts are necessities, not luxuries…

As Neuhard aptly observes, anyone could read this “and apply it equally to civil and criminal proceedings.” In Brotherhood of R.R. Trainmen v Virginia – one year afterGideon – the Court noted of civil litigants that “laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully-counseled adversaries.” While it has come close, the nation’s highest court has never guaranteed a right to counsel in civil cases.

And maybe it shouldn’t. If anyone who wants a lawyer can get one for free, well, it’s not crazy to think this might give way to a hurricane of frivolous litigation. But there are certainly instances when guaranteed counsel would help many obtain justice who otherwise would not. Here’s John Pollack writing for the National Coalition for the Civil Right to Counsel:

Most wealthy people would hire an attorney to avoid losing their home, their children, or, in cases that involve health or safety (such as domestic violence), potentially their very life. The typical indigent civil litigant cannot hope for a “fair trial” when facing off alone in an adversarial proceeding against a landlord’s attorney, or a bank, or a state’s social services agency, or an abuser that brings the full force of intimidation into the courtroom. 

Clearly there is no easy answer. Cornell Law professor Kevin M. Clermont wrote in an email that while he would favor “some provision of counsel” for the indigent, “we are in for very difficult line-drawing.” And though it would certainly be expensive, Pollack argues that the costs may even out more often than we’d expect: 

When the state refuses to pay for counsel in civil cases, it is simply paying that money in other ways. For instance, evicted tenants and victims of domestic violence wind up in government-funded shelters or hospitals. Parents who are errantly ordered to pay more child support than they can actually afford wind up in jails.

All things considered, Clermont wrote, “If you create a complex adversary system, you are obliged to make it open to all.” Unfortunately, our civil justice system – complex, adversarial, costly, slow – is open to very few. Clermont suspects that finding a solution is probably “a matter for the legislature, rather than for judges to decide as a constitutional matter, á la Gideon itself.” 

Now, if only we could find two unlikely parties to team up and get to work.