“Thou Shalt Not Ration Justice”

By Hank Greenberg

March 1, 2020

“Thou Shalt Not Ration Justice”


By Hank Greenberg

Speaking at the Legal Aid Society of New York’s 75th anniversary celebration in 1951, the immortal jurist Learned Hand observed: “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”

Truer words in the law may never have been spoken. Yet here we are some 70 years later and universal access to justice is far from a reality.

The United States ranks 103rd out of 126 countries in the accessibility and affordability of civil legal services.  Poor and most middle-income Americans receive inadequate or no legal assistance when facing civil legal challenges.  A study of ten major urban areas revealed that an estimated 76% of civil matters had at least one self-represented party.  The access to justice crisis is even more dire in rural communities, where there is an exodus of lawyers, fewer young lawyers are choosing to practice, and a majority of those who remain are at or near retirement age.

The situation is deteriorating for the poor charged with crimes.  In 1963, the U.S. Supreme Court handed down Gideon v. Wainwright, requiring states to provide legal counsel to indigent defendants charged with a felony.  The organized bar and judiciary in New York have fought to make real Gideon’s promise, by securing passage of legislation in 2017 that requires full state funding of indigent criminal defense services in all 62 counties.

But this victory was incomplete.  It did not increase assigned counsel rates in New York state courts.  The last increase in those rates occurred more than 15 years ago — in 2004 — when they were raised to a meager $60 an hour for misdemeanors and lesser offenses, and $75 per hour for felonies and all other cases.  The cost per case is capped at $4,400.

The assigned counsel rates are an affront to the administration of justice.  By contrast, assigned counsel in federal courts receive $152 an hour for non-capital cases, and the federal Criminal Justice Act provides for annual rate increases.  It is an outrage that New York’s assigned counsel rates are less than half what the federal government deems appropriate to ensure the Constitutional right to counsel.

The state’s woefully low (if not unconstitutional) assigned counsel rates have severe consequences.  Attorneys are declining to serve on assigned counsel panels, which impacts civil as well as criminal proceedings.  Since 2014, fully one-third of the attorneys serving on attorney-for-the-child panels across the state have dropped out of the program.

Even as so many dedicated lawyers continue to selflessly represent the poor on a pro bono basis and civil legal service providers do extraordinary work for their clients throughout the state, the justice gap widens every day.  The New York State Bar Association is leading the way to address the ever-worsening crisis.

In addition to fighting in the Legislature for increased funding, we have launched landmark initiatives.  In June 2019, for example, we established a Rural Justice Task Force, composed of 30 distinguished members of the upstate bench and bar.  The task force is already being looked to by other states as a national model for addressing the accelerating access to justice crisis in rural communities across the nation.

At the same time, we are calling on the Legislature and Governor to establish a first-in-the-nation statutory right to counsel in New York immigration proceedings.  Great disparities exist in the outcomes of immigration cases depending on whether an immigrant is represented by counsel.

This past February, we played a key role in brokering the passage of an access to justice resolution at the American Bar Association’s midyear meeting in Austin, Texas.  The resolution calls for “state regulators and bar associations to continue to explore regulatory innovations that have the potential to improve the accessibility, affordability and quality of civil legal services.”  This is an historic first step to rethink how legal services are delivered to the poor and middle class.

In a democratic society, lawyers are necessities, not luxuries.  The assistance of counsel is a prerequisite for meaningful access to justice.  Legal representation levels the playing field when a person faces a powerful legal adversary, like the government or a major corporation.  In such circumstances, the lack of counsel denies people the ability to effectively defend or pursue their rights.

For a profession dedicated to equal justice under the law, lawyers cannot accept a status quo where justice is rationed for the financially disadvantaged.  New York is a state of progress and promise.  The eternal ideal of justice for all is our profession’s lodestar, our guiding light.  We must redouble our efforts to ensure that everyone has equal access to justice.

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