Friday, April 19, 2013

The Paradox of Legal Representation in America

A couple weeks ago I flew out to the University of Oregon to interview for a fellowship as well as to visit the Law School as an admitted student. While I was there I attended a talk that I found very interesting which I believe relates somewhat to Alexander’s argument in The New Jim Crow. In her section describing how the system of mass incarceration works in chapter 5, Alexander brings up the issue of the difficulty defendants have in finding meaningful legal representation. Alexander states:

“Once arrested, defendants are generally denied meaningful legal representation and pressured to plead guilty whether they are or not. Prosecutors are free to ‘load up’ defendants with extra charges, and their decisions cannot be challenged for racial bias.”

The issue Alexander discusses here ties directly into the issue discussed at the talk I attended in Oregon, the issue of legal access. Legal access refers to the ability of an average citizen to obtain information about their legal rights, essentially to gain proper legal representation. This is an area where the US consistently ranks poorly on Freedom House rankings. It is largely due to the overwhelming cost of quality legal representation. Most students out of law school, though they may have had the most admirable of intentions before entering, seeks high paying jobs at major firms. It is somewhat understandable that law graduates do this as they often rack up massive amounts of debt to obtain their legal education and look for jobs that will help pay off those debts quickly. Nonetheless this results in a small portion of law school graduates, particularly top tier graduates, going to work as public defenders. 

Those few who do wind up going to work as public defenders find themselves overwhelmed with cases, particularly in poor urban areas that are the target of the discrimination Alexander describes. Though these defenders may have every desire to provide the best possible representation to their clients, the sheer workload they face makes it next to impossible logistically. The result is a legal system which is structurally designed in a way that prevents the defendants targeted by the system of mass incarceration from obtaining meaningful legal representation.

The system I have described at least made economic, if not moral or social, sense when the legal field was booming in the 80’s, 90’s, and 2000’s. Today, however, the legal industry is in a state of disarray. Articles abound with predictions of the end of the traditional legal system in the US and the end of jobs for lawyers (as someone entering law school next year I have been unable to avoid hearing from just about every person I know that I won’t be able to find a job). There is evidence to back up these gloomy predictions, last year only about 50% of law grads found jobs within 9 months of graduation. The cause of this ‘crisis’ is primarily an over-saturated legal market with more lawyers than there are law jobs.

But wait! 

Didn't I start this post describing the shortage of legal professional available to represent the defendants Alexander describes? Wasn't there a story about overworked public defenders somewhere in that mess of text above here? 

Yes, that’s the paradox. At a time when only 50% of law grads are able to find a job because they are entering a over-saturated job market there remain millions of defendants in desperate need of proper legal representation. Why is this? The answer is unclear. Part of it is an unwillingness among law grads to take jobs as public defendants in urban area. Part of it is an unwillingness of states to provide equal funding to public defendants as that to to district attorneys. Part of it is the lack of an effective way to pair these graduates with the defendants who need their expertise. 

Some programs are popping up to connect members of the unemployed legal market with the underrepresented defendants. These are often not public programs though. They are funded largely by private contributors and universities who want to find jobs for their graduates in order to improve their employment statistics. Where funding does not come from is from state and local governments. There has been little to no effort in the public sector to tap into the saturated legal market to provide representation to defendants who need it. Alexander did not explicitly mention this in the sections we read, but I think it is part of the problem she addresses when she points out the need for public support for reforming the justice system. If the legal market remains over-saturated for an extended period, more programs may pop up. We can hope so anyways, but it is unlikely to happen if people are unaware of the issue. 

Side Note: Another issue I wanted to bring up, but found more difficult to tie into our current discussions is a recent supreme court decisions. Essentially what happened was that in a unanimous opinion littered with conflicting concurring opinions with varying rationale, the Supreme Court nullified the ability of a 1789 law to be used as a means of bringing international human rights violations to the US court system. Its a major setback for international human rights. If you want to know more about it there is a solid New York Times opinion piece on it.

1 comment:

  1. John,

    I enjoyed reading your analysis of the paradox of legal representation in the United States. I come from a family made up of 3 generations of lawyers so I hear law discussions (and gossip) a lot. One thing I've often heard is how no one wants to be a public defender. As you've already noted, not only are public defenders underpaid, but they have to take on a ridiculous work load (and stress). Meanwhile, my brother - who is graduating from law school this year - often complains about the over-saturated law market. Your paradox accurately connects some of the things that I have heard floating around lately. One can only hope that it is either addressed by the Government or aided by the programs which connect members of the unemployed legal market with the underrepresented defendants.


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