Saving Basic Civil Justice in America

As you may know, the new administration’s proposed budget aims to eliminate all federal funding for the Legal Services Corporation. As in, no funding at all. Zero. Zilch. Nothing.

Why is that a problem?

The LSC is the single-largest funder of civil legal aid for low-income Americans. In other words, if you’re poor and accused of a crime, you’d have access to a lawyer because we fund a public-defense system for that (albeit poorly); but in civil matters, you’d have nothing to help you deal with a legal problem if it weren’t for the LSC and other agencies like it.

Congress created the LSC in 1974 through a bipartisan vote. At the time, President Nixon said it would address “small claims in the Nation’s eye [that] loom large in the hearts and lives of poor Americans.”

Today, the agency funds over 130 nonprofits that handle more than 750,000 cases each year for low-income clients. Overall, it helps nearly two million people per year for less than $1.20 per taxpayer. It keeps families in their homes, finds affordable housing for veterans, protects seniors from predatory scams, and provides lifelines to victims of natural disasters.

Who qualifies for help?

Households who live at or below 125% of the federal poverty line. That’s about $15,000 for an individual or $30,000 for a family of four.

Already, the legal profession is mobilizing in defense. The American Bar Association immediately issued a statement condemning the plan. Even before the administration unveiled it, the leaders of 157 major law firms wrote to explain why the LSC represented the kind of public-private partnership the government should encourage, not eliminate. That was followed last week by a letter to Congress from the deans of 166 law schools, whose clinical programs work with nonprofits that rely on the LSC. And that was followed this week by a letter to Congress from 185 of corporate America’s chief legal officers. For the latest summary of these developments, see here.

Please lend your voice, too. The ABA has set up an easy way to send a message to your members of Congress, and you can find the campaign on Facebook too. Please call on them to fund the LSC responsibly. The ABA will print these messages and hand-deliver them to each member of Congress between April 25 and 27.

Because there’s no justice without access.

A Big Anniversary for the Bill of Rights

Thursday will mark 225 years to the day.

On December 15, 1791, the Commonwealth of Virginia became the eleventh state to ratify the first ten amendments to the U.S. Constitution. That meant that three-fourths of state legislatures had approved them, which meant the Bill of Rights was born.

To commemorate the occasion, here’s a great essay about one of its architects, James Madison. It talks about how Madison opposed a bill of rights at first because he feared that it would limit people’s essential rights to just those listed. He thought a list wasn’t necessary in a new system in which the people were sovereign and the government derived its power from their consent. He also believed that the real buffer against a tyranny of the majority lay in the Constitution’s structural checks and balances: federalism, bicameralism, and the separation of powers. Eventually, though, Madison came around, and at the first Congress of the United States, he introduced the amendments that became the Bill of Rights.

The ten amendments enshrine many of our most important rights and freedoms. They declare that, in America, you’re meant to be free in the following ways, among others.

  • You’re free to say, think, and believe what you want to say, think, or believe.
  • You’re free to print, publish, and broadcast information even if the government opposes it.
  • You’re free to associate with others, band together peaceably, and petition the government to redress your grievances.
  • The government can’t take your life, liberty, or property if it doesn’t follow fair and objective rules.
  • It can’t search or seize you, your home, or your property unreasonably or without following the rules.
  • It can’t take your property and put it to public use without paying you fairly for it.
  • It can’t punish you without telling you why and giving you a meaningful chance to defend yourself.
  • It can’t punish you excessively or inhumanely, no matter what.

For the full text of the U.S. Bill of Rights, see here. 




Do You Care About Justice?

Speaking of lies, there’s no shortage of them in an election year, but if you’re looking for a constructive way to sound off to the presidential candidates, here’s one.

The National Association of Criminal Defense Lawyers has sent each of the four candidates—Clinton, Trump, Johnson, and Stein—a questionnaire with fifteen questions about their views on the criminal-justice system.

The NACDL has created a website for the public to receive the candidates’ answers and pose their own questions. The website lists all fifteen questions, invites you to say which three are most important to you, and allows you to submit your own question for the candidates.

There’s also a short but compelling video on the Sixth Amendment and why it matters so much. It features interviews with a prosecutor, a retired police detective, a defense attorney, and former criminal defendants.

The website is called I Care About Justice, and you can find it at

SCOTUS Stands Up for the Sixth Amendment

We’ve asked this question before. What if the government charged you with a crime, and you wanted to defend yourself but couldn’t—not because you didn’t have any money, but because the government had blocked all access to it?

Twenty-five years ago, the U.S. Supreme Court said the government can freeze your money before trial if there’s probable cause to believe the money’s traceable to the alleged crime, even if you have no other funds for legal fees.

Tough cookies if the government can drive trucks through a hole the size of probable cause. That’s your problem; the presumption of innocence be damned.

But last month, the Court was called on to decide whether the government could take the extra step of freezing assets that you need to fund a defense even if they’re not traceable to the alleged crime.

This time, the answer was no. Here’s how it went down.

The government had accused the defendant of a $45 million Medicare fraud, but when she was indicted, she had a mere $2 million to her name, which (the government agreed) included clean funds unrelated to the alleged fraud. The defendant wanted to use some of that money to pay for her defense.

Even so, the government moved for an order freezing all of it, and the court granted it. The government argued that the forfeiture statute authorized a freeze of both property traceable to the alleged crime and “property of equivalent value.” The defendant countered that, for God’s sake, she had a constitutional right to use her own money to fund a defense. The court, however, concluded that there was “no Sixth Amendment right to use untainted, substitute assets to hire counsel.”

The trial court’s order was affirmed on appeal, but the Supreme Court reversed, ruling that the government violated the defendant’s right to counsel when it restrained her legitimate, untainted assets in a way that deprived her of the ability to retain her counsel of choice.

Otherwise, the Court noted, the government could effectively prevent people from hiring private lawyers and law firms to defend them.

Then everyone would have to rely on a public-defense system that included “overworked and underpaid public defenders.”

Imagine that.

An Unfunded Mandate from Above

In Gideon, the United States Supreme Court observed that “lawyers in criminal courts are necessities, not luxuries.”

But fifty years later, we continue to fall short of the full promise of the Sixth Amendment, and the struggle is real.

National standards recommend that public defenders handle no more than 150 felony cases, 400 misdemeanor cases, or 200 juvenile cases per year. As a lawyer, I can tell you those are a lot of cases, but I don’t need to. We all know there are only 365 days in a year.

The reality is that very few defender’s offices have enough lawyers to meet those standards. By some measures, only 27 percent of county-based offices and 21 percent of state-based offices do. What’s worse, only seven percent of county-based offices have enough investigators to meet those standards, and many don’t employ a single full-time investigator.

The consequences are that more people sit in jail for longer after an arrest (which costs money); more people plead guilty to get out of jail, taking bad deals or copping to things they didn’t do; the system as a whole makes more mistakes, including wrongful convictions; and people receive harsher, excessive sentences.

Gideon may have been an unfunded mandate, but it’s as fundamental as the heavens, and it was mandated by the Sixth Amendment. Who would we be without it?

The Importance of Public Defense

Many people observed National Public Defense Day on March 18. Yes, there’s a day on the calendar for everything, but this one’s important.

It honors the day in 1963 that the Supreme Court decided Gideon v. Wainwright: the case of a poor defendant who believed the Constitution promised him an effective lawyer if he was accused of a crime.

The man had just finished having to defend himself against burglary charges at trial, where he was convicted and sentenced to five years in prison.

From prison, he wrote his own petition to the high court in pencil, and the Court said, you’re right, and gave him another trial.

There, with a trained lawyer who could effectively cross-examine the case, he was acquitted after one hour of jury deliberation.

To further honor that case and our national public defense system, here are two readable, interesting explanations of why we need more public defenders as judges.

Among other things, it would help ensure an independent judiciary, which is crucial to the checks and balances on which our rights and freedoms rely.

And we don’t have to look far in the world around us to appreciate that, as we’ve covered here the last two weeks.

Do You Have a Good Criminal Defense Attorney?

If you don’t know, here’s some food for thought from the Huffington Post.

The author is a former public defender who writes about the realities of our justice system, and he makes five good points that are worth considering in evaluating your lawyer. I’ve paraphrased them below, but you can read his words for yourself right here.

Good lawyers advocate zealously for you. They fight tooth and nail for their clients, as the author puts it, and doggone it, they care. They care about your case, they care about the result, they care about their work in general, and they care about the rule of law.

Good lawyers have a reputation for competence, passion, and ethics. They can catch flies with honey or vinegar but have the judgment to know the difference. They strike hard blows at the opposition, but they don’t commit hard fouls because they represent you in the truest sense of the word, and they want their representation to reflect well on you.

Good lawyers do their jobs whether you’re guilty or innocent. They may never know, and they usually don’t care (unless it helps you) because their job is to defend you, not prosecute you, and the government does a good enough job of prosecuting people on its own. They honor their constitutional duty to stand by your side even if no one else does.

Good lawyers have no respect for allegations, indictments, and police reports. That doesn’t mean they take them lightly. But they know that a police report may not be worth the paper it’s printed on, and just because the government alleges something doesn’t make it so. So they assume nothing, take nothing for granted, and question everything.

Good lawyers take the time to listen to you. They know that their relationship with you is an important part of preparing and presenting your best defense, and they make the time to talk to you and get to know you as a whole human being.

New California Criminal Laws in 2016

Happy New Year! And with it, here are five important criminal laws that went into effect.

Courts must report prosecutors for bad-faith Brady violations. This is Assembly Bill 1328. It amends the Penal Code to provide that a court must report a prosecutor to the State Bar who it finds, by clear and convincing evidence, has deliberately withheld exculpatory evidence in bad faith, and the violation either contributed to your conviction or seriously hindered your ability to defend yourself. The court may also disqualify the prosecutor from the case, and if it does, the defense may move to disqualify the prosecutor’s entire office if there is enough evidence that other employees shared in the bad faith as part of a pattern and practice. See Pen. Code § 1424.5; Bus. & Prof. Code § 6068.7(a)(5).

The police must get a new type of warrant to search your electronic data. This is Senate Bill 178. It amends the Penal Code to require a special court order before a government agent or entity can search your data in electronic devices or the cloud, including your emails, text messages, and location data. There is an exception if the government believes in good faith that it needs the data to address a life-threatening emergency, but even then, the government must apply for a warrant within three days. Other rules require it to seal, retain, or destroy your data depending on what it finds and to notify you of what it’s doing. If the government doesn’t follow these rules, you can move to exclude the evidence it obtained as a result. See Pen. Code §§ 1546, 1546.1, 1546.2 & 1546.4.

The public has a right to record the police. This is Senate Bill 411. It amends the Penal Code to confirm that you can’t be stopped for or charged with resisting or obstructing a police officer (or public official) if the officer or official is in a public place or if you have a right to be there. See Pen. Code §§ 69(b) & 148(g).

Grand juries will no longer investigate or indict cases involving police shootings or the use of deadly force. This is Senate Bill 227. It amends the Penal Code to bar grand juries from indicting or inquiring into cases involving a police officer’s use of force that led to the death of someone he or she had detained or arrested. See Pen. Code §§ 917(b) & 919(c).

The state will collect and maintain more comprehensive data on police stops and profiling. This is Assembly Bill 953. It amends the Government Code to require that state and local law-enforcement agencies collect data on every police stop and report their data annually. The data must include the time, date, and location of the stop as well as the reason for it, what happened next, and the end result. The law also expands the definition of police profiling beyond race to include gender, religion, national origin, and sexual orientation. The largest agencies have until April 2019 to issue their first report while the smallest agencies have until April 2023, and those in the middle have until 2020 or 2022 depending on their size. See Gov’t Code § 12525.5; Pen. Code §§ 13012(a)(5) & 13519.4.

The Mercy Project

Life is fragile. We sometimes forget that, but we remember quickly when we lose something or someone important to us. We often forget it because, in the developed world, we tend to live longer and better than people ever have. We forget that, even in our own country, not everyone lives (and has lived) as we do.

Last Friday, President Obama granted mercy to 95 people who may have died in prison otherwise. The President granted them executive clemency and commuted their sentences so that they may be able to go home in the next year or two. Most had been sentenced to life in prison or to extremely long, nearly-life sentences for nonviolent drug offenses. Many had already served twenty years or more in prison.

Each of these people met six criteria that the Justice Department has outlined for consideration of clemency petitions:

  1. They are serving a federal prison sentence that would likely be substantially lower if they were convicted of the same offense today.
  2. They are nonviolent, low-level defendants without significant ties to gangs, cartels, or other large-scale criminal organizations.
  3. They have served at least ten years of their sentence already.
  4. They have no significant criminal history.
  5. They have demonstrated good conduct in prison.
  6. They have no history of violence before or since their imprisonment.

For people who meet these criteria, six leading civic organizations have partnered to help them petition for clemency. The six are the American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, and the Offices of Federal Public Defenders.

Their collaboration, the Clemency Project, has produced an impressive, volunteer effort by the country’s legal profession to review case files and to prepare clemency petitions for those who deserve it. Of the 95 petitions that the President granted last week, the Clemency Project was responsible for 27 of them.

But they need more help, so if you’re a lawyer, please consider taking on just one case for the public good and the cause of justice. If you’re a criminal defense lawyer, that’s even better, but lawyers from any practice area are welcome, and the Project will guide and support you so that you don’t have to worry about what you don’t know.

You may even help someone come home for Christmas who thought they never would again.

Why Soak the Rich When We Can Punk the Poor?

Speaking of probation, it’s supposed to be that you don’t go to jail for being poor.

Thirty years ago, the U.S. Supreme Court ruled that a court couldn’t revoke your probation and imprison you for not paying a fine or restitution unless the court found, after inquiry, that you somehow could pay the fine or restitution, or even if you couldn’t, that no other alternative to imprisonment, like community service, would adequately punish or deter you. See Bearden v. Georgia, 461 U.S. 660 (1983).

But according to a yearlong NPR study, we’re not there yet. The study researched the law in all fifty states and conducted over 150 interviews with lawyers, judges, public officials, policy experts, and probationers in and out of jail. Two key findings emerged:

  1. Defendants are charged for a long list of services that were once free—including ones that are required by the Constitution.
  2. Poor people sometimes go to jail when they fall behind on their payments.

As we’ve noted before, the problem gets worse when we outsource these core public functions to private, for-profit enterprise.

Here’s how one civil-liberties lawyer put it: “It’s not that it’s wrong to charge people money as a way to punish them. But there have to be alternatives for people who can’t pay. And that alternative cannot be: incarceration if you’re poor, payment if you’re rich.”

Meanwhile, meet two Harvard-trained lawyers whose non-profit law firm works to reconcile our values and reality. In particular, they’ve sued private probation companies to stop abusive practices that fleece people for minor offenses then throw them in jail when they can’t pay the surcharges. You can find their website at

They deserve our support.

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