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EQUAL JUSTICE FOR ALL?
MARTIN AVILLEZ
BY WALTER TRUMBULL
"The vibrancy of our Democracy depends upon our
willingness to ensure that the fullest range of voices and
interests are represented and heard This is what justice is
all about"
-ROBERTF. UTTER. RETIRED JUSTICE,
WASHINGTON STATE SUPREME COURT
The answer to this question for most of us is as
challenging as the question itself. The question is, does our
system and practice of justice in America today really mean
equal justice for all? This system that struggles now more than
ever to administer the greater promise of its purpose, needs our
undivided attention.
The idea that there is “equal justice” in America today is
one which seems to depend greatly upon one’s ability to access
the system Can there be justice for all of us, even if we can't
even determine what our rights in any situation are? If you
needed legal help today, to ask a question on a simple matter,
what would you do? Your right to equal justice is too often
determined by your ability to afford the “right" to access.
Freedom and justice, at a price. A price which few can well
afford.
It should then come as no surprise that with today’s
present political and economic dilemma, the very idea and act
of justice in our society has fallen prey to profit and power,
politics and partisanship Can we ensure the right to counsel for
the poor, the working poor (the middle class), and the rich? The
system absolutely serves the rich, it always has. The poorest
members of our society are also served through the indigent
defense counsel, though by no means as effectively and as
justly as those able to afford $200,00 to $500.00 an hour for
representation. Of course, even this basic’ tool, the indigent
defense counsel protection, is now under serious attack. What
about the rest of us, the nearly 80% of Americans who struggle
to provide for ourselves and for our families? What access to
'equal justice' are we guaranteed by the Constitution? Only that
which we can afford?
In regards to indigent defense counsel, it has certainly
been a long hard fight for this basic right. The foundation of
this right was set forth in Webb v. Baird (6 Ind. 13), the Indiana
Supreme Court decision in 1853. It recognized the right to an
attorney at public expense for an indigent person accused of a
crime, grounded in “the principles of a civilized society," not in
constitutional or statutory law A civilized society? There's an
idea worth consideration. Perhaps this idea was in the minds
of those who gave this new nation a dream of freedom for all.
Today, however, we now see our own state judiciary attempting
to 'cut the throat’ of the right to counsel for the poor. This com
bined with a similar movement in other states will leave the rich,
alone in the land of the free, with justice.
The Indiana Supreme Court decision 150 years ago sent
a message which compels us to remember this one idea: “It is
not to be thought of in a civilized community for a moment that
any citizen put in jeopardy of life or liberty should be debarred
of counsel because he is too poor to employ such aid. No court
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could be expected to respect itself to sit and hear such a trial.
The defense of the poor in such cases is a duty which will at
once be conceded as essential to the accused, to the court and
to the public.”
The Sixth Amendment to the United States Constitution
stares: “In all criminal prosecutions, the accused shall enjoy the
right...to have the Assistance of Counsel for his defense.” Yet it
was not until 1914 that the first public counsel appeared in Los
Angeles.
The unfortunate reality is that throughout most of the
20th century little really happened to further protect the rights
of the poor, no less the rights of all working class Americans.
The U.S. Supreme Court has moved at a relatively unimpres
sive rate in pursuit of this essential right. It was not until major
decisions such as Gideon v. Wainwright and later Argersinger v.
Hamlin, that further and more expanded rights were given to the
poor in both criminal and misdemeanor state proceedings.
But serious problems remain. As the Justice Department
discovered in a report conducted three years ago in 2000. In the
report, Improving Criminal Justice Systems Through Expanded
Strategies & Innovative Collaborations, the overall problem is
summed up thusly: “Standards are frequently not implemented,
organizational structures are weak, workloads are high, and
funding has not kept pace with other components of the criminal
justice system. The effects can be severe, including legal
representation of such low quality to amount to no represent
ation at all, delays, over-turned convictions, and convictions of
the innocent. Ultimately, as Attorney General Janet Reno states,
the lack of competent, vigorous legal representation for indigent
defendants calls into question the legitimacy of criminal
convictions and the integrity of the criminal justice system
as a whole.”
The obvious result of the above study can be seen
through the conclusions of the recent National Legal Aid
Defenders Association (NLADA) report on the 40th anniversary
of Gideon v. Wainwright:
-No counsel at all: The dirty little secret of the criminal
justice system is how many people accused of a crime receive
no counsel at all.
-Excessive caseloads: With the present limit of 150
cases per year, many Public Defenders are carrying anywhere
from 500 to 1,500 cases per year, severely limiting the quality
of services.
-Lack of enforceable standards: More cases are being
decided based not on the facts in their cases, but rather the
jurisdiction. There is much work to be done to establish a system
that the American Bar Association (ABA) itself uses, The Ten
Principles of Public Defense Delivery System.
-Underfunding: The big issue. The government typically
spends three times as much on prosecution than on public
defense. Limited funding again diminishes the resources and
training needed to adequately ensure justice.
-Lack of independence: National standards provide that
defense should be independent from political pressures. The
ability that the public defender has should be equal to that by
which attorneys for those who can afford it have.
The problem we are now facing must be addressed by
each of us. According to the National Council for Consumers of
Legal Services, you are three times more likely to be named as
a defendant in a civil or criminal suit that you are to spend one
night in a hospital bed. We are all driven by another unfortunate
system, the managed health care industry, to fork over thous
ands of dollars a year out of our own pockets, no matter how you
look at it. This system barely manages to provide adequate and
reliable health care for the majority of middle class workers. Of
course again, if you are well off you can afford the best health
care available. The medical insurance industry, as it was born
of a need to attract more workers at the onset of World War 2,
offered to them as a benefit, has now become a multi-trilllion
dollar industry. Do any of us believe we are getting the care we
deserve? Where are these trillions going?
Likewise, we see huge profits in the automobile and life
insurance industries. Industries which rely upon the threat of an
accident to protect our future. What happens when your health,
auto or other insurance carrier refuses a claim? What happened
to your protection; what happened to your ‘insurance’? They
have $500 an hour attorneys on their side to prevent any justice
when we cry foul at their mistakes or purposeful neglect and
manipulation. They are certain you will not be calling your
attorney, as you more than likely cannot afford to retain one.
The larger and more problematic issue is the over
burdened court system One where almost half the cases could
be settled out of the courtroom, giving public defenders and their
limited resources a greater ability to provide the truly poor with
the protection they deserve We are a very litigious society here
in the U.S.; many cases which are absolutely frivolous could be
kept out of the system entirely if most people would handle their
potential legal problems early on But when you do not have the
financial resources to call a qualified attorney and get sound
advice, you either just hope the problem goes away or you
become a statistic. Driving the apparent failure of our justice
system to even greater failures, we become the fuel for its
demise. Is this the best we can do for ourselves? I know we can
do better.
Another issue which the studies do not show is the fact
that so many of us are at times being harassed and threatened
with 'legal action'. Banks and credit card companies continually
rewrite their software to return the highest yield on marginal
credit risk customers. We are increasingly being profiled and
rated, placed in further financial stress as a result of how many
large financial institutions exchange and decipher our credit
worthiness We are left to fight our own fights with manufacturers
who refuse to honor warranties, businesses that provide us
unsatisfactory service and creditors who will stop at nothing
to beat us into submission with the threat of legal action. Did
I mention the biggest creditor (rhymes with 'predator') of all,
the IRS? Tough to protect yourself from their ever-frightening
tactics.
Many of us also experience difficulties on the job. Issues
that have dangerous legal ramifications, issues that could threat
en our employment. Employee rights are also under a continual
threat of being minimized by micro-managing number crunches
and HR Managers pressured by upper management to keep
employees 'under control’. We can look everywhere in our daily
lives and see how the growing number of small issues which
occupy more and more of our time and energy, are exacting a
higher and higher price. An industry survey suggests employees
with legal problems at home are four times more likely to take a
sick or personal day; that they use their medical insurance three
times more often; and experience a measurable decrease in job
performance.
Is there a solution? The National Association of Social
Workers annual report shows clearly that although there is some
availability of pro bono and legal aid work, there needs to be a
way low and middle income citizens can get better legal services
at reasonable cost. They see this as the biggest problem they
face in assisting people with their problems. Of the few possible
solutions, they see a definite benefit in the risa of pre-paid legal
service plans. What is a pre-paid legal plan?
In 1972 a school teacher who had been in an automobile
accident that was not his fault spent all of his savings defending
himself in court. He believed there had to be a way for average
working Americans to protect their rights and not be financially
destroyed by an event they were not responsible for.The affair
led this visionary man to establish a company that offered
employees a benefit plan, providing legal help for anyone
involved in an accident, on the job or in their personal driving
From that beginning the solution to our present legal
problems began to form. Today, 1.4 million American families,
individuals and businesses have a legal services protection plan
through this company. After 31 years, this legal plan offers a
comprehensive list of benefits and coverage to protect every
member. Remember this little fact: 80% of Europeans have
some form of pre-paid legal service plan. They have for almost
50 years.
The legal service plan I believe can help everyone be
proactive and not victimized by our legal system is one that I
joined six months ago. It has truly protected me and actually
paid for itself. How about that as a solution? You gain access to
top quality lawyers and law firms for less than the price of a cup
of coffee a day. Another good reason to drink tea.
Here’s how it works:
You call a toll free number and tell the legal representa
tive your problem. An attorney specializing in that field (one of
226 fields of law) calls you back to discuss your question or
problem. The attorney will research your problem, and if a
phone call or letter will help, will make the call or write the letter
on your behalf.
If you or your spouse are named in a criminal or civil
suit, you will receive up to 75 hours of trial defense benefits your
first year, which also covers you on the job. If you or anyone in
your family is cited for a moving violation, the provider law firm
will advice you and represent you in court if necessary, as well
as assist in other DMV issues. You will always receive at least
25% off any other legal services not covered. You can never be
canceled and there is no contract.You, your spouse and children
are covered not only in Oregon, but in every state in the U.S.
and Canada.
Can you imagine how much easier life would be for all
of us if we were able to truly have “justice for all.” The peace of
mind of knowing you are protected, your rights guarded, and you
have the power that the rich have in our legal system
Walter Trumbell lives in Astoria. For response to this
article, he can be reached at 717-8593.