REMARKS OF ANN LESK Etats Généraux de l Aide Juridictionnelle Lille, France 25 juin L Aide Juridictionnelle aux Etats-Unis - PDF

REMARKS OF ANN LESK Etats Généraux de l Aide Juridictionnelle Lille, France 25 juin 2010 L Aide Juridictionnelle aux Etats-Unis M. le Bâtonnier Despieghelaere, Mesdames, Messieurs On behalf of the New

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REMARKS OF ANN LESK Etats Généraux de l Aide Juridictionnelle Lille, France 25 juin 2010 L Aide Juridictionnelle aux Etats-Unis M. le Bâtonnier Despieghelaere, Mesdames, Messieurs On behalf of the New York County Lawyers Association, or NYCLA, I thank Bâtonnier Despieghelaere and l Order des avocats de Lille for inviting me to participate in this distinguished program. The invitation was very timely, because only this month NYCLA filed a lawsuit against the City of New York challenging proposed changes to the indigent defense system. Consequently, I have devoted much time over the last few months to issues concerning legal aid. In the United States, there is not a centralized, uniform legal aid system. We have two parallel judicial systems: the Federal courts, which deal with crimes under Federal laws and some civil cases, and the state courts, which deal with state crimes and all other civil cases. The state courts are bound by decisions of the United States Supreme Court interpreting the Constitution, but they may implement those decisions in a variety of ways. Each state makes its own decisions about who provides legal aid, how it is funded, the amount of training and oversight and, on the civil side, in what kind of cases it will be available. Thus, it is difficult to generalize about an American legal aid system. Nevertheless, there is one point on which there is broad agreement: As an American Bar Association report stated, Forty years after Gideon v. Wainwright,1 indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction. 2 One prominent public interest lawyer declared, No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel. 3 Gideon v. Wainwright established a Federal constitutional right to effective assistance of counsel for indigent defendants. State and local governments are required to implement this mandate, but their interpretations of the constitutional mandate are very different. Generally, states use one of three mechanisms (or sometimes a combination of two or three of them) to provide counsel to the indigent: first, a state may establish an office of the public defender, staffed with salaried attorneys; second, courts may assign cases to private attorneys who are compensated separately for each case; and third, a state may contract with a legal services organization to provide representation, sometimes on a flat-fee rather than per-case basis. In some states, like New York, the responsibility to provide indigent defense is delegated to the counties, and each county can create its own U.S. 335 (1963). 2 American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon s Broken Promise: America s Continuing Quest for Equal Justice, December 2004, at v. 3 Stephen B. Bright, Turning Celebrated Principles Into Reality, Champion, Jan. -Feb. 2003, at 6, quoted in Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N. Y. U. Rev. L. & Soc. Change 427 at indigent defense system. Thus, there are 53 different governmental subdivisions in New York State with independent responsibility for indigent defense. Funding for indigent defense comes from the counties and the state in different proportions, and the total amount of funding varies widely. Mississippi spends less than $5 per resident on indigent defense, while Oregon spends more than $24. The Federal indigent defense system, which is available to defendants in Federal courts, spends more than $100 per resident. 4 The American Bar Association report concludes: [D]efense services in the U. S. are not adequately funded, leading to all kinds of problems. These include a lack of funds to attract and compensate defense attorneys; pay for experts, investigative and other support services; cover the cost of training counsel; and reduce excessive caseloads. Too often the lawyers who provide defense services are inexperienced, fail to maintain adequate client contact, and furnish services that are simply not competent, thereby violating ethical duties to their clients.... [I]n most jurisdictions there is an absence of oversight to ensure uniform, quality services; sometimes simply a failure to provide counsel; and improper waivers of counsel and guilty pleas accepted without lawyers. 5 I want to emphasize that most of the lawyers who defend the indigent are dedicated, talented lawyers. They are, however, carrying caseloads that are grossly excessive. Courts and organizations that have adopted caseload limit standards have generally promulgated limits of between 150 and 200 felony cases per year. Average 4 Rick Jones, The New Frontier in Indigent Defense Big Firms in State Trial Courts, Champion, June 2009, Gideon s Broken Promise at iv-v. 3 annual caseloads for public defenders of 300 to 400 felony cases per year are, however, widely reported. 6 Civil legal aid in the United States is in equally dire straits. Although there is a widespread belief among non-lawyers that the indigent have legal rights to representation in civil cases, this is not the case. In 1981, in Lassiter v. Department of Social Services,7 the Supreme Court held that there was no Federal constitutional right to counsel for indigent parties in cases involving termination of parental rights. The Court went even further, saying, With regard to what the fundamental fairness requirement of the Due Process Clause means concerning the right to appointed counsel, there is a presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. 8 Thus, with very limited exceptions, states were free to make their own decisions concerning legal aid to the indigent in non-criminal cases. In general, there is no broad right to counsel for indigent litigants in any state. In 1971, the New Jersey Supreme Court held that counsel must be provided to the indigent in civil cases with a consequence of magnitude. 9 Although the language suggests a widely available right to counsel, a recent report by Legal Services of New Jersey found 6 Steven N. Yermish, Ethical Issues in Indigent Defense: The Continuing Crisis of Excessive Caseloads, Champion, June, 2009 at fn U. S. 18 (1981). 8 Id. 9 Rodriguez v. Rosenblatt, 277 A. 2d 216, 223 (1971). 4 significant unmet needs for legal services among low-income people, comparable to results in surveys covering states without any comparable requirement. 10 Virtually all states provide representation for children involved in abuse or neglect proceedings, because this is a prerequisite to obtaining Federal funding for child abuse prevention and treatment. 11 Many states provide counsel for parents in proceedings to terminate parental rights. Many, but not a majority, of states provide some right to counsel in other cases involving children and family rights, such as divorce, child custody, visitation, child support and paternity. Many states provide counsel in cases involving involuntary commitment to mental health institutions. Beyond that, civil rights to counsel are sparse and scattered. Indigent litigants facing eviction from their homes, foreclosure of mortgages, judgments for consumer debt, and other serious consequences have no right to counsel, with a very small number of exceptions. 12 This has led to what is frequently referred to as the Justice Gap. 13 A few statistics will give you an idea of the dimensions of the Justice Gap. In New Jersey and Washington, D. C. 99 percent of defendants in housing eviction cases have no lawyer. The Legal Services Corporation ( LSC ), by far the largest provider of civil legal aid in the country, reports that for every client that it serves, at least one person who sought help 10 Legal Services of New Jersey Poverty Research Institute, Unequal Access to Justice: Many Legal Needs, Too Little Legal Assistance (September 2009) 11 Laura K. Abel and Max Rettig, State Statutes Providing for a Right to Counsel in Civil Cases, Clearinghouse Review Journal of Poverty Law and Policy, July-August 2006, Id. 13 Legal Services Corporation, Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans (June 2007). 5 was turned down because of insufficient resources. This represents about one million cases that LSC could not handle each year. Although low-income people generally characterize their legal problems as very serious things like eviction, or loss of government benefits less than 20% are addressed with the assistance of counsel. Although there is one lawyer for every 525 people in the United States, there is only one legal aid lawyer for every 6800 low-income people. Many, many bar associations attempt to fill some of the justice gap with programs to provide pro bono publico assistance. However, the sheer number of cases makes it impossible for pro bono programs to address more than a fraction of the problem. For example, NYCLA s pro bono programs assisted about 1000 people last year. This represented a 30% increase from two years ago, and NYCLA has continued to expand its programs. However, the number of eviction cases filed in New York City is about 250,000 per year. There is at least an equal number of consumer debt cases filed each year. Virtually all of the defendants are unrepresented. New York City s less than 100,000 lawyers cannot be expected to satisfy that need through pro bono assistance. The American Bar Association has called for civil Gideon a right to counsel for indigent litigants in adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody Resolution Approved by American Bar Association House of Delegates August 7, Similarly, the ABA has endorsed a right to counsel for all persons in deportation proceedings, and for all non-citizens in immigration-related matters. 15 The ABA s call for civil Gideon has been joined by the Chief Judge of New York State,16 and by many other bar leaders and organizations. California has just enacted a pilot program to provide counsel to indigent litigants in civil cases affecting basic human needs, but it will not go into effect until July, The basic problem is funding. In 1974, Congress created the Legal Services Corporation ( LSC ) to provide legal assistance in civil cases to the indigent. The goal was to start by providing one legal services lawyer for every 5000 poor people in order to implement minimum access to the justice system. In 1981, this goal was met, and LSC received Federal funding of $321 million. The next year, President Ronald Reagan tried to abolish LSC, and ultimately succeeded in cutting its funding severely. It has never recovered. In fiscal year 2009, the LSC would have needed about $1 billion to match the 1981 level of funding in inflation-adjusted dollars; it received only $390 million. Symposium: The situation was summed up by one participant in a 2008 ABA Access to Justice The problem we face in the American legal system is not a problem of how to increase pro bono or legal aid (although we should do that too), which 15 Resolution Approved by American Bar Association House of Delegates February 13, Chief Judge Jonathan Lippman Law Day 2010 Address. 7 are ultimately mere drops in the bucket on the order of a few percentage points of total legal effort and resources. Rather, the problem is one of urgent need for structural reform in the regulatory and policy/funding system responsible for the critical infrastructure of market democracy, particularly one that draws as heavily as the American system does on law and legalism to structure economic, political, and social relationships Marc Galanter, Access to justice in a world of expanding social capability, Fordham Urban Law Journal (2010)
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