If We Had a Judiciary Seriously Concerned With Justice

7 05 2013

This Mother Jones article detailing the outrages of the public defender system really lays bare the fact that access to the justice system is something you have to be able to afford, not unlike health care or education or everything always.

A citizen’s ability to express her constitutional rights is as important as the right itself. To that end, access to the legal system to vindicate our various rights are critical. For too many Americans, the immiseration of labor means insufficient resources (money) to avail themselves of the legal system. If the government, or your employer, or whoever, is screwing you over, you likely can’t afford to assert your constitutional or statutory rights.

This is particularly true if you’re a poor criminal defendant. In a place like New Orleans, your overworked and underpaid public defender, the person entrusted with safeguarding your constitutional rights as a citizen, may only have seven minutes to prepare your case.

A federal judiciary that put access to justice, rather than “federalism” and “judicial economy” at the core of its jurisprudence, should never stand for this outrage. The right to effective counsel, found in the Sixth Amendment and applied to the states by the Fourteenth (in a case called Gideon v. Wainwright, so such clients or attorneys are may be referred to as Gideon clients or Gideon counsel), is no less a right than speech or free exercise or bearing arms. But it’s treated more like a mere check box on a procedural list; did you technically have counsel? Then the state satisfied the Sixth Amendment.

Rightfully, the federal courts should be accepting habeas corpus writs from state courts in every case where an indigent defendant was represented by one of these Gideon attorneys in a state with underfunded public defenders (e.g., every state) and overturning their convictions on Sixth Amendment grounds. Habeas writs from final state court decisions can be filed in federal venues where the criminal defendant can allege certain classes of constitutional violations implicated by the process leading up to his conviction. The Sixth Amendment is one of those, and a federal court has the power to invalidate a conviction on Constitutional grounds. Imagine if a state faced the prospect of every Gideon-scenario conviction being overturned by a federal court. It’s a wonderful vision of a legal system that cared as dearly for those who cannot afford to assert their Constitutional rights as it does for massive corporations it shields from class actions.

Obviously this will never, ever happen. It does seem to me to be the only way to force state legislatures to take this Constitutional right as seriously as they do the Constitutional rights of pharmaceutical companies to advertise to you or gun manufacturers to sell you military-grade weaponry.



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