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Abstract

The adequacy of access to justice in the American legal system is not a newly emergent issue. Discussion acknowledging this right dates back to colonial times. For example, in 1932, the United States Supreme Court noted in the case of Powell v. Alabama that the right to counsel in criminal proceedings can be traced back to colonial times in America. The Court remarked that the right to be heard must encompass the right to be heard by counsel if it is to be meaningful. In the ongoing dialogue on this issue, primacy has been given to the right of criminal defendants to have legal counsel. The right to counsel in civil cases, when acknowledged, is given considerably narrower scope. Over time, a number of different mechanisms have evolved to respond to the need to provide legal counsel for those who cannot afford an attorney. For criminal defendants, legal counsel may be assigned through court contracted attorneys, court appointed legal counsel, or appointment of a public defender. For parties involved in civil suits, legal services funded through the federal Legal Services Corporation (LSC) are the primary source of legal assistance. These mechanisms are supplemented in varying degrees by state and local bar association pro bono initiatives, private attorney pro bono contributions, and representation of indigent clients by law school clinical programs. Viewed in the most favorable light, in the aggregate, the cumulative impact of these various initiatives is marginal. Availability of services may vary from state to state and is vulnerable to federal and state budget priorities. Viewed with a more critical eye, the current system is woefully inadequate. As Deborah L. Rhode noted: “Equal justice under law” is one of America’s most proudly proclaimed and widely violated principles. It embellishes courthouse entrances, ceremonial occasions, and constitutional decisions. But it comes nowhere close to describing the legal system in practice. Millions of Americans lack any access to justice, let alone equal access. According to most estimates, about four-fifths of the civil legal needs of the poor, and two- to three-fifths of the needs of middle-income individuals, remain unmet. Government legal aid and criminal defense budgets are capped at ludicrous levels, which make effective assistance of counsel a statistical impossibility for most low-income litigants. We tolerate a system in which money often matters more than merit, and equal protection principles are routinely subverted in practice. Organizations providing legal services to their clients without charge are increasingly challenged to cobble together an annual operating budget from federal, state, and private charitable sources.

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