“Equal justice under law” is one of America’s most firmly embedded and widely violated legal principles. It is a rhetorical flourish commonly encountered in ceremonial rhetoric and occasionally even constitutional decisions. But it comes nowhere close to describing the justice system in practice. While this is not, of course, the only legal context in which rhetoric outruns reality, it is one of the most disturbing, given the fundamental nature of the rights at issue.
It is a shameful irony that the nation with the most lawyers has among the least adequate systems for legal assistance. It is more shameful still that the inequities attract so little concern. An estimated four-fifths of the legal needs of the poor, and the needs of two to three fifths of middle-income individuals, remain unmet. Over the last two decades, national spending on legal aid has been cut by a third, and increasing restrictions have been placed on the cases and clients that government-funded programs can accept. Entire categories of the “unworthy poor” have been denied assistance, and courts have largely acquiesced in these limitations, as well as in ludicrous limitations on fees for court appointed lawyers in criminal cases.i The case law governing effective assistance of counsel and access to nonlawyer services is a conceptual embarrassment. Yet neither the public nor the profession has been moved to respond in any significant fashion.
This essay is a reminder of our abandoned aspirations. It begins with a candid confrontation of our failures: our unwillingness to take equal justice seriously at a conceptual, doctrinal, political, or professional level. And it concludes with a challenge to do better. The aim is not a detailed deconstruction of constitutional case law or an exhaustive examination of policy alternatives. The objective rather is to explore the outlines of what a serious commitment to equal justice would entail and some strategies for pushing us in that direction.
The essay begins with some conceptual challenges. In theory, “equal justice under law” is difficult to oppose. In practice, however, it begins to unravel at several key points, beginning with what we mean by “justice.” In conventional usage, the concept seems largely procedural. “Equal justice” is usually taken to mean “equal access to justice,” which in turn is taken to mean access to law.ii But as is frequently noted, a purely procedural understanding by no means captures our aspirations. Those who receive their “day in court” do not always feel that “justice has been done,” and with reason. Money often matters more than merits, in all the ways that Marc Galanter described in his classic article on “why the haves come out ahead.”iii Substantive rights and procedural obstacles can be skewed, and even those who win in court can lose in life, given post-judgment power relations. These difficulties are seldom acknowledged in bar discussions of access to justice, which assume that more is better, and that the trick is how to achieve it.
But even from a purely procedural standpoint, these discussions leave a host of conceptual complexities unaddressed. Does meaningful access also require legal assistance, and if so, how much is enough? For what? From whom? For whom? Should government support go only to the officially poor, or to all those who cannot realistically afford lawyers? How much claiming and blaming is our society prepared to subsidize? How do legal needs compare with other claims on our collective resources? And, most importantly, who should decide?
The complexities are compounded if we also think seriously about what would make justice truly “equal.” Equal to what or to whom? How, realistically, do we deal with disparities in incentives, resources, and legal ability? As R. H. Tawney once noted about equal opportunity generally, one wonders what would alarm proponents most, “the denial of the principle or the attempt to apply it.”iv Any serious effort to equalize access would require not only massive public expenditures but also the prohibition of private markets.
Part of the reason that we are reluctant to confront these issues involves the scale of additional subsidies that would be necessary to provide minimal, let alone equal access. Unlike most other industrialized nations, the United States recognizes no right to legal assistance for civil matters and courts have exercised their discretion to appoint counsel in only in a narrow category of cases. Legislative budgets have been equally minimal. The federal government, which provides about two-thirds of the funding for civil legal aid, now spends only about $300 million for such assistance. This works out to roughly $8 per year for those officially classified poor and recent estimates suggest that well over 10 times that amount, on the order of $3 to $4 billion dollars, would be required to meet the civil legal needs of low-income Americans.v Such estimates substantially understate the magnitude of expenditures necessary to guarantee minimal access, since they do not include the unmet needs of middle-income Americans that are now priced out the legal process, or collective concerns such as environmental risks, community economic development.
Nor do these access to justice projections take into account the cost of providing truly adequate assistance in the criminal cases and the limited number of civil proceedings where indigents are already entitled to court-appointed counsel. Hourly rates and statutory caps on compensation for private lawyers are set at utterly unrealistic levels. Rates for out-of-court work are as low as $20 or $25, and ceilings of $1,000 are common for felony cases. In some states, teenagers selling sodas on the beach do better than court appointed counsel.vi For most court-appointed lawyers, thorough preparation is a quick route to financial ruin. Analogous constraints arise in public defender offices that generally operate with crushing caseloads, sometimes up to 500 felony matters at a time, which precludes significant preparation for the vast majority of clients.vii
Defendants just over the poverty line who hire their own attorneys don’t necessarily fare better. Even in capital cases, many of individuals end up as death penalty expert Steven Bright once put it, with counsel who have “never tried a case before and never should again.”viii
Our pretensions to equal justice mesh poorly with these financial realities and we have failed to come up with appropriate limiting principles, not only at that conceptual but also at the political and doctrinal level. Let me say a brief word about each.
Much of the problem in securing broader access to justice stems from the public’s failure to recognize that there is, in fact, a problem. A wide gap persists between popular perceptions and daily realities, Most Americans are convinced that the legal system coddles criminals, a view reinforced by news and entertainment media. In the courtrooms that the public sees, lawyers like those representing O. J. Simpson’s leave no stone unturned. But they are charging by the stone. Most defense counsel cannot. And it matters. In recent studies, between half and four-fifths of counsel entered guilty pleas without interviewing any prosecution witnesses.ix
The inadequacy of representation leaves many legislative bodies unmoved, given an electorate more interested in getting tough on criminals than in subsidizing their defense. The chair of a Missouri appropriations committee expressed common attitudes with uncommon candor in announcing publicly that he “did not care whether indigent criminal defendants were represented or not.”x Although recent exonerations of wrongfully convicted defendants through DNA evidence have somewhat increased public concerns about the adequacy of their defense, budget priorities have rarely changed in response.xi
With respect to civil legal assistance, the public is more supportive, but equally misinformed. Although the vast majority of Americans favor providing legal assistance for the poor in civil cases, most would rather see it come from volunteer attorneys than from government subsidies, and 40 percent want to support only advice, not litigation. For many claims, such as those involving challenges to welfare legislation or prison conditions, one Denver legal aid attorney aptly noted that “[t]he only thing less popular than a poor person is a poor person with a lawyer.”xii
Not only are Americans ambivalent about ensuring legal assistance, they are ill informed about the assistance currently available. Almost four-fifths incorrectly believe that the poor are now entitled to legal aid in civil cases, and only a third think that they would have a very difficult time obtaining assistance. Such perceptions are wildly out of touch with reality. Legal services offices can handle less than a fifth of the needs of eligible clients and often are able to offer only brief advice, not the full range of assistance that is necessary.xiii Wait lists of two years for non emergencies are common, and entire categories of the “unworthy poor” are excluded from federal support, such as prisoners, undocumented immigrants, or individuals with claims involving abortions, homosexual rights, or challenges to welfare legislation.xiv
Part of the problem is that few individuals are aware of what passes for justice among the have-nots, and many of their perceptions are skewed by idealized portrayals in civics classes, popular media, and right wing political rhetoric. The federal legal services budget has been a particularly inviting conservative target, and the most effective state and local programs have attracted similar opposition.xv According to critics’ accounts, legal services lawyers get “cushy amenities for convicted felons and worsen the plight of the poor by encouraging divorce and welfare dependency, and bankrupting those who hire low income workers. The right has been largely successful in restricting federal funding to provision of individual services, and preventing class actions and organizing activities that might address the structural sources of poverty, or to help the poor help themselves. And such restrictions are likely to persist unless we can do better in persuading the public—or the courts—of the importance of equal access in practice as well as principle.
In 1956, in Griffin v. Illinois, the Supreme Court observed that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”xvi Over the next half-century, American courts have repeatedly witnessed the truth of that observation, and have repeatedly failed to address it. These failures have occurred along multiple dimensions. Courts have declined to recognize a right to appointed counsel in civil cases except under highly limited circumstances. In the civil and criminal proceedings where courts have recognized a right to assistance, they have failed to insure that representation meets acceptable standards. Judicial oversight has been equally lacking for the substantive and financial restrictions that legislatures have established for legal services. And despite the overwhelming shortages of affordable or government- subsidized legal assistance, courts have failed to establish structures that would enable most Americans to represent themselves effectively. The paper explores all of these failures. For purposes of this overview, let me just highlight the worst.
The first involves the unwillingness to find ineffective assistance of counsel, even where attorneys were drunk, on drugs, or parking their car during key parts of the prosecution’s case.xvii And defendants have been executed despite their lawyers’ lack of any prior trial experience, ignorance of all relevant death penalty precedents, or failure to present any mitigating evidence.xviii One systematic survey found that over 99 percent of ineffective assistance claims were unsuccessful.xix
The extent of judicial tolerance is well illustrated by the jurisprudence that has developed to determine how much dozing is constitutionally permissible. As one federal district judge put it, “the Constitution says that everyone is entitled to an attorney of their choice. But the Constitution does not say that the lawyer has to be awake.”xx Other courts agree, and some employ a detailed three-step analysis: did counsel sleep for repeated and prolonged periods, was counsel actually unconscious, and were crucial defense interests at stake while counsel was asleep?xxi Not only have courts been reluctant to set aside convictions for ineffective assistance of counsel, they have been equally unwilling to address the financial and caseload pressures that produce it. Challenges to inadequate statutory fees for private attorneys and excessive assignments for public defenders have rarely been successful.xxii Indeed, some judges who face crushing caseloads of their own, often have been reluctant to encourage effective advocacy that would result in more time consuming trials and pretrial matters.
Finally, and most disturbingly, courts have failed to address the impact of their own rules and practices in obstructing access to justice. On issues like procedural simplification, pro se assistance, and nonlawyer services, courts have too often been part of the problem, not the solution.
In “poor peoples’ courts” that handle housing, bankruptcy, small claims, and family matters, parties without lawyers are less the exception than the rule. Yet the systems in which these parties operate have been designed by and for lawyers, and courts have done far too little to make them accessible to the average claimant.
Innovative projects and reform proposals are not in short supply: procedural simplification, standardized forms, increased educational materials, self service centers with interactive kiosks for information and document preparation, free in-person assistance from volunteer lawyers or court personnel; and judicial intervention to prevent manifest injustice.xxiii But a majority of surveyed courts have no formal pro se assistance services, and many of the services that are available are unusable by those who need help most: uneducated litigants with limited competence and English language skills.xxiv
Judges vary considerably in their willingness to fill the gaps and to assist unrepresented parties. Some courts have been reluctant to intervene on the ground that such efforts will compromise their impartiality or encourage more individuals to proceed without lawyers.xxv Even the most sympathetic judges often have been unwilling to push for reforms that will antagonize lawyers whose economic interests are threatened by pro se assistance and whose support is critical to judges’ own effectiveness, election campaigns, and advancement.
Similar considerations have worked against efforts to broaden access through nonlawyer providers of legal services. Almost all scholarly experts and bar commissions that have systematically studied the issue have recommended increased opportunities for nonlawyer assistance. Almost all the major judicial decisions have ignored those recommendations.xxvi In the interests of full disclosure, I should note that I personally have contributed two decades worth of ineffectual articles arguing that prevailing bans on unauthorized practice of law by lay competitors are sweeping in scope and unsupportable in practice.
The dominant approach is to prohibit lay provision of personalized legal services. Yet comparative research finds that nonlawyer specialists are generally at least as qualified as lawyers to provide assistance on routine matters where legal needs are greatest.xxvii Such results should come as no surprise. Law schools do not generally teach, and bar exams do not test, the specialized information involved in dealing with those matters. And while courts have justifiable concerns about unqualified or unethical lay assistance, these abuses are not the only targets of unauthorized practice doctrine. And they could be addressed through more narrowly drawn prohibitions and licensing structures for nonlawyer providers.xxviii
A final area of judicial abdication involves pro bono service. Proposed requirements have come and gone, but mainly gone.xxix State supreme courts have adopted only aspirational standards, coupled in a few jurisdictions with voluntary or mandatory reporting systems.xxx Yet most lawyers have failed to meet these aspirational goals, and the performance of the profession as a whole remains at shameful levels. That brings me to
Failures of the Bar
There are many, but let me highlight just two where the gap between rhetorical commitments and actual practices is most appalling: pro bono service and unrepresented parties.
Bar ethical codes and commentary have long maintained that lawyers have an obligation to assist those who cannot afford counsel.xxxi And bar leaders have long waxed eloquent in describing the “quiet heroism” of the profession in discharging that responsibility.
Such claims suggest more about the profession’s capacity for self-delusion than self-sacrifice. Although accurate information is hard to come by, recent surveys indicate that most lawyers provide no significant pro bono assistance to the poor. In most states, less than a fifth of lawyers participate. The average contribution is under half an hour a week and half a dollar a day.
Pro bono programs involving the profession’s most affluent members reflect a particularly dispiriting distance between the bar’s idealized image and actual practices. Fewer than a fifth of the nation’s 100 most financially successful firms meet the ABA’s standard of 50 hours a year of pro bono service.xxxii Over the past decade, when these firms’ revenues grew by over 50 percent, their average pro bono hours decreased by a third. For many other employers, salary wars have pushed compensation levels to new heights, but this affluence has eroded, rather than expanded, support for pro bono programs.xxxiii
Even the most modest efforts to increase the profession’s public service commitments have been dismissed as forms of “latent fascism” and “economic slavery.” The vast majority of lawyers have rejected the notion that their special status entails special obligations. And they have support restraints on lay competition that help price services out of reach for many consumers.
Bar leaders have long insisted that such restrictions are motivated solely by concerns to protect the public rather than the profession. But virtually no experts and no other countries share that view. Most nations generally permit nonlawyers to provide assistance on routine matters, and no evidence suggests that these lay specialists are inadequate. Problems of unqualified or unethical services can be addressed through regulation, not prohibition. Yet the organized bar is moving in precisely the opposite direction. At its February 2000 meeting, the ABA approved a resolution to increase enforcement of unauthorized practice prohibitions.
As these examples suggest, most lawyers support the concept of equal access to justice only as long as it does not put their own interests at risk. Stephen Gillers aptly observes that lawyers regulating lawyers and their lay competitors “looked after their own.”xxxiv Significant reform will require enlisting other Americans to look after their own, and to demand a justice system that is more accessible and more accountable to the public interest.
An Alternative Aspiration: Adequate Access to Justice
The final section of the paper sketches the outline of that system, one with an aspiration more plausible than equal justice—namely adequate access to justice. In giving content to that ideal, courts, bar associations, law schools, legal aid providers, and community organizations must work together to develop comprehensive, coordinated systems for the delivery of legal services. Under such systems, legal procedures and support structures should be designed to maximize individuals’ opportunities to address law-related problems themselves, without expensive professional assistance. Those who need, but cannot realistically afford, lawyers should have reasonable opportunities for competent services.
Reducing the need for professional assistance calls for strategies along several dimensions: increased simplification of the law; more self-help initiatives; better protections of unrepresented parties; greater access to nonlawyer providers; and expanded opportunities for informal dispute resolution in accessible out- of-court settings.
Providing adequate assistance for those who need but cannot realistically afford it will require greater commitment from courts, legislatures, and bar associations. Courts must do far more to ensure competent performance of counsel in criminal cases, and to ensure access to counsel in civil cases. Standards governing malpractice and effective assistance of counsel should be strengthened. States should be required to allocate sufficient resources for indigent defense, and should be prohibited from imposing civil legal aid restrictions that compromise effective advocacy. Broader eligibility standards should also be permitted, with financial support from a variety of sources likely to command greater support than general tax funds. Examples include: a tax on legal services revenues; a surcharge on court costs for cases that exceed a certain amount; and a pro bono requirement for lawyers that could be satisfied by 50 hours of service or the financial equivalent.xxxv
It is a national disgrace that civil legal aid programs now reflect less than 1 percent of the nation’s legal expenditures.xxxvi And it is a professional disgrace that pro bono service occupies less than 1 percent of lawyers’ working hours. We can, and must do more, and our greatest challenge lies in persuading the public and the profession to share that view. More education about what passes for justice among the have-nots should be a key priority. Law schools have a unique opportunity and a corresponding obligation to insure that access to justice remains a professional aspiration. I am grateful for an opportunity for this reminder of all that still stands in the way.