Archive | March 2013

Gideon v. Wainwright 50 years later

From today’s New York Times, the following is an excerpt from a story that describes the reality of one’s right to an attorney.  Note that the right doesn’t extend to civil trials, among others.

 

Right to Lawyer Can Be Empty Promise for Poor

By

ADEL, Ga. — Billy Jerome Presley spent 17 months in a Georgia jail because he did not have $2,700 for a child support payment. He had no prior jail record but also no lawyer. In Baltimore last fall, Carl Hymes, 21, was arrested on charges of shining a laser into the eyes of a police officer. Bail was set at $75,000. He had no arrest record but also no lawyer. In West Orange, N.J., last summer, Walter Bloss, 89, was served with an eviction notice from the rent-controlled apartment he had lived in for 43 years after a dispute with his landlord. He had gone to court without a lawyer.

Fifty years ago, on March 18, 1963, the Supreme Court unanimously ruled in Gideon v. Wainwright that those accused of a crime have a constitutional right to a lawyer whether or not they can afford one. But as legal officials observe the anniversary of what is widely considered one of the most significant judicial declarations of equality under law, many say that the promise inherent in the Gideon ruling remains unfulfilled because so many legal needs still go unmet.

Civil matters — including legal issues like home foreclosure, job loss, spousal abuse and parental custody — were not covered by the decision. Today, many states and counties do not offer lawyers to the poor in major civil disputes, and in some criminal ones as well. Those states that do are finding that more people than ever are qualifying for such help, making it impossible to keep up with the need. The result is that even at a time when many law school graduates are without work, many Americans are without lawyers.

The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans — 35 percent more than in 2005 — who qualify for its services. But it calculates that 80 percent of the legal needs of the poor go unmet. In state after state, according to a survey of trial judges, more people are now representing themselves in court and they are failing to present necessary evidence, committing procedural errors and poorly examining witnesses, all while new lawyers remain unemployed.

“Some of our most essential rights — those involving our families, our homes, our livelihoods — are the least protected,” Chief Justice Wallace B. Jefferson of the Texas Supreme Court, said in a recent speech at New York University. He noted that a family of four earning $30,000 annually does not qualify for legal aid in many states.

James J. Sandman, president of the Legal Services Corporation, said, “Most Americans don’t realize that you can have your home taken away, your children taken away and you can be a victim of domestic violence but you have no constitutional right to a lawyer to protect you.”

According to the World Justice Project, a nonprofit group promoting the rule of law that got its start through the American Bar Association, the United States ranks 66th out of 98 countries in access to and affordability of civil legal services.

“In most countries, equality before the law means equality between those of high and low income,” remarked Earl Johnson Jr., a retired justice of the California Court of Appeal. “In this country for some reason we are concerned more with individuals versus government.”

With law school graduates hurting for work, it may appear that there is a glut of lawyers. But many experts say that is a misunderstanding.

“We don’t have an excess of lawyers,” said Martin Guggenheim, a law professor at New York University. “What we have is a miserable fit. In many areas like family and housing law, there is simply no private bar to go to. You couldn’t find a lawyer to help you even if you had the money because there isn’t a dime to be made in those cases.”

Even in situations where an individual is up against a state prosecutor and jail may result, not every jurisdiction provides lawyers to the defendants. In Georgia, those charged with failing to pay child support face a prosecutor and jail but are not supplied with a lawyer.

Justice Scalia: Judicial Activist?

The following piece from The Economist is critical of what it describes as Justice Scalia’s inconsistent judicial philosophy.  Is this a fair criticism?  Or is Justice Scalia, in this case, justified in seeking to overturn the actions of the legislative branch?

The Voting Rights Act

Antonin Scalia’s uber-activism

WEDNESDAY’S oral argument at the Supreme Court on the constitutionality of Section 5 of the Voting Rights Act of 1965 brought an extraordinary piece of analysis from Justice Antonin Scalia—a comment that drew gasps from the audience. The law’s utility as a shield against voting practices that discriminate based on race, Mr Scalia suggested, had evaporated. He argued that requiring nine Southern states and sections of seven others, all with a history of discrimination, to “pre-clear” changes to voting procedures with the Justice Department is now needless interference with “state sovereignty”.

Analysing the most recent reauthorisation of the act in 2006, Mr Scalia explained away its lopsided support in the Senate (98-0) and House of Representatives (390-33):

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same….I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

After his comment caused a minor stir in the courtroom, Mr Scalia added:

I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution… [T]his is not the kind of a question you can leave to Congress….Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

This is not Mr Scalia’s first impolitic outburst. But for a justice who stakes his jurisprudence on deferring to the democratically elected branches of government, it is a stunning line of reasoning. Consider, by comparison, Mr Scalia’s endorsement of Justice Benjamin Cordozo’s 1933 statement decrying judicial second-guessing of legislative acts:

We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.

And recall Mr Scalia’s claim in the 1990 euthanasia case Cruzan v Missouri that it is not for judges to decide when a patient’s life is “worthless”, but “it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish [to end a life] will be honored.”

So why not let the people’s elected representatives handle the matter of racial discrimination and voting? Why, in this case, does Mr Scalia believe he should substitute his views for those of legislators? Members of Congress, after all, considered 12,000 pages worth of testimony in 2006, which showed “pervasive discrimination” in the covered districts. As Justice Elena Kagan said yesterday to Burt Rein, the attorney for the petitioner, “that’s a big, new power that you are giving us…the power now to decide whether racial discrimination has been solved. I did not think that that fell within our bailiwick.”

For a justice who sniffs out closet activism even in his fellow conservative justices—in 2007 he criticised Chief Justice John Roberts for exercising “faux judicial restraint“—Mr Scalia apparently finds the Voting Rights Act to be a uniquely egregious specimen of legislative incompetence. While Mr Scalia has voted to overturn congressional laws from time to time, such as in City of Boerne v Flores (which got a brief mention during Wednesday’s argument), never has he couched his judicial activism in such cynical terms. We cannot trust the Congress to legislate earnestly on questions of race, Mr Scalia implied, because senators and representatives feel bound to uphold “racial entitlements” that their forebears have enacted. Political correctness rules.

Let us posit for the sake of argument that Mr Scalia’s cynicism is on target: American senators voted unanimously to extend the law in 2006 not because they found merit in its provisions but because they feared that a “no” vote would earn them condemnation as racists. What then? Should America trust its Supreme Court to bring a more careful, measured eye to the question? The tenor of the comments from the conservative justices suggests the answer is no. Consider the simplistic suggestion from the chief justice that because “the citizens in the South are [no] more racist than citizens in the North” we can safely ignore evidence that Southern states still systematically discriminate against minorities. Consider the ease with which Mr Scalia equated the guarantee of an equal right to vote with the concept of “racial entitlement”. And consider the failure of any justice to mention efforts in many of the covered states to depress voter turnout among minority voters in 2012. It remains highly questionable whether a majority of the Supreme Court is up to the task of diagnosing America’s racial challenges.

The Voting Rights Act of 1965

The following two videos give you some background on the Voting Rights Act dispute that was argued in front of the Supreme Court last month, and then give you a taste for the two sides of the argument on whether Section 5 of the Act is unconstitutional.  In your view, should the Court uphold Section 5, or not?