Rationed justice.

• Author: Smith, Jennifer M.
• Position: Equal justice to all without regard to economic status

"Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society ... it is fundamental that justice should be the same, in substance and availability, without regard to economic status." (2)

1. INTRODUCTION

   In the United States, "equal justice under law" is at the very forefront of our American justice system. (3) "Equal justice" is meant to guarantee equal access to the justice system. (4) "Equal access to the judicial process is the sin qua non of a just society." (5) Many Americans, however, do not have any access to the justice system, never mind that of equal access. (6) "Equal justice" has not reached the nation's indigent, or even many of our moderate-income citizens. (7)

2. WHAT ACCESS?

   1. How We Arrived Here

      The Equal Protection Clause of the Fourteenth Amendment requires equal access, for all Americans, to the courts in certain circumstances. For example, the government may be required to provide a criminal defendant with an attorney, to waive court fees for those that it may help, or to pay litigation costs for those who cannot. (8) In cases that concern fundamental rights, the issue is whether the statute unconstitutionally restricts that fundamental right, not whether the statute is fair or unfair to indigent parties. (9)

   2. Access to Criminal Justice

      The United States Supreme Court provided more protection for equal access in the criminal context than in the civil context. (10) For example, more than thirty-five years ago, the Court recognized that prisoners have a constitutional right of access to the courts. (11) In Ex parte Hull, (12) the Court said that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus" by repeatedly seizing and destroying habeas corpus petitions prepared by a prison inmate. (13) Similarly, in Johnson v. Avery, (14) the Court declared unconstitutional a state prison regulation prohibiting prisoners from helping each other with habeas corpus and other legal issues. (15) Additionally, the Court in Procunier v. Martinez, (16) relying upon Johnson v. Avery, declared a prison ban that prohibited law students and paralegals from conducting attorney-client interviews with clients unconstitutional because it constituted an unjustifiable restriction on the inmates' right of access to the courts. (17)

      A significant case regarding a prisoner's right to access courts is Bounds v. Smith. (18) In Bounds, inmates incarcerated in North Carolina's correctional facilities filed civil rights suits alleging that they were denied access to the courts, in violation of their rights, by the state's failure to provide legal research facilities. (19) The Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." (20)

      After the decision in Bounds, numerous inmates filed lawsuits alleging denial of access to the courts. (21) Then, the Court decided Lewis v. Casey, (22) which departed from Bounds. (23) In Lewis, the Arizona Department of Corrections argued that the district court exceeded its authority in imposing an injunction that mandated extensive changes in access to prison law libraries and legal assistance. (24) The Court found that Bounds stood on an established right of access to the courts, traced from earlier cases where the Court protected inmates' rights by prohibiting state prison authorities from actively interfering with inmates' preparation of legal documents. (25) The Court, however, held that Bounds did not "create an abstract, freestanding right to a law library or legal assistance." (26) Therefore, a violation of the right of access to the courts requires an inmate to show an actual injury; the inmate must show that his or her efforts to pursue a legal claim were hindered because of a substandard library. (27)

      The Court further explained that Bounds exceeded the right of access recognized in preceding cases, which was an inmate's right to bring a grievance to court. (28) Justice Scalia said, "Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." (29) Prisoners have a right to access the court, but with limitations. Since Lewis, courts dismissed numerous prisoners' access to court cases for failing to meet the actual injury requirement. (30)

      The Sixth Amendment provides a right to legal counsel for indigent defendants in federal criminal prosecutions and in 1963, the Court unanimously declared in Gideon v. Wainwright (31) that the right to legal counsel for indigent defendants also applied to state criminal prosecutions. (32) Almost a decade after Gideon, the Court decided Argersinger v. Hamlin, (33) which extended indigents' right to counsel for all criminal prosecutions--misdemeanor or felony--where a jail sentence may be imposed. (34) Recently, however, in Luis v. United States, the Supreme Court came close to inquiring whether America's underfunded public-defender system meets the Sixth Amendment's standards for adequate legal counsel. (35)

      1. Access to Civil Justice in the United States

         No civil counterpart to Gideon that mandates counsel for indigent civil litigants exists. (36) Advocates calling for a right to counsel in civil cases coined the term a "Civil Gideon," borrowing the term from the Gideon case. (37) Under such a civil right to counsel, indigent litigants who are facing issues involving basic human needs, such as housing, safety, health, child custody, or sustenance, would be entitled to legal representation. (38)

         In the United States, most citizens who appear in court do so without legal representation. (39) Many face life-changing events, such as losing custody of their children, their home, or the chance to live in the United States, yet they represent themselves because they cannot afford a lawyer. (40) Although over fifty million Americans qualify for federally funded legal representation, more than half who request legal assistance are turned away due to low funding. (41) "There continues to be a substantial 'justice gap' between truly meeting the needs of low- and moderate-income people and the resources available for civil legal services. (42)

         About twenty years after the Gideon decision, the Court decided Lassiter v. Department of Social Services of Durham County, N. C. (43) In Lassiter, the petitioner lost her parental rights, and, on appeal, argued that the Fourteenth Amendment's Due Process Clause required North Carolina to provide her with counsel because she was indigent. (44) The Court held that the Fourteenth Amendment does not provide a right to counsel for indigent litigants in every civil case. (45) Rather, the Court held that the determination of whether the appointment of counsel in civil cases was constitutionally required should be assessed on a case-by-case basis, after considering three elements from Mathews v. Eldridge (46): "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." (47) Those elements are balanced against each other, and then weighed against the presumption that the right to appointed counsel only exists where the indigent's personal freedom is at stake. (48)

         The Court, however, indicated that in some matters involving juvenile proceedings, probation and parole revocation, and the termination of parental rights, the right to counsel may extend to civil cases. (49) Although some consider Lassiter a roadblock to a constitutional right to counsel in civil cases, states can--and some already do--provide their residents with greater protection of Fourteenth Amendment rights. (50) Indeed, some states give judges the discretionary power to appoint lawyers free of charge for indigent parties in various civil cases. (51) Judges, however, rarely appoint counsel simply on the basis of indigent status. (52) Courts applied Lassiter in such a limited manner that appointment of counsel in civil cases is almost never mandated. (53)

         The Court also addressed whether the Fourteenth Amendment protects access to the court in the disability rights context. In Tennessee v. Lane, (54) paraplegics sued Tennessee, alleging that the state failed to provide reasonable access to court facilities in violation of Title II of the Americans with Disabilities Act of 1990 (ADA). (55) Lane was involved in a car accident that resulted in the death of a woman and left Lane unable to walk. (56) Following the accident, Lane faced misdemeanor charges of reckless driving for allegedly driving on the wrong side of the road. (57) Lane had to appear in a county court in Tennessee that had no elevator, forcing Lane to crawl up two flights of stairs to attend the hearing. (58) He refused to attend a second hearing in the same courtroom and was arrested for failing to appear. (59) Lane claimed security officers laughed at his circumstances, and he sued the state for $ 100,000 in damages. (60)

         The Court, in a divided 5-4 decision, concluded that states were not exempt from provisions of the ADA, such as those requiring elevators or ramps in public facilities. (61) Title II, said the Court, was Congress's response to evidence of "pervasive unequal treatment of disabled persons" in the administration of justice. (62) The Court stated that Title II's affirmative obligation to accommodate disabled persons in their access to justice was consistent with the solid principle that, "within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard." (63)

         The Court held that Title II, as it pertained to cases involving the right of...