Magazine | August 14, 2017, Issue

Simplify the Law

Serial podcast subject Adnan Syed (Karl Merton Ferron/Baltimore Sun/TNS via Getty Images)
An attorney shouldn’t be needed for every case

As fans of the podcast Serial will recall, Baltimore teenager Adnan Syed was convicted of murdering his ex-girlfriend, Hae Min Lee. The state’s case suffered from serious weaknesses: The government’s main witness was involved in burying the body, police had threatened to charge him unless he implicated Syed in the killing, he admitted to lying repeatedly to avoid blame, and his story conflicted with cell-phone call records. Syed was found guilty nonetheless.

Readers familiar with the U.S. Constitution should find this puzzling. America is a nation founded on justice and the rule of law. We declared independence from England in part because King George III had repeatedly interfered with colonists’ legal rights and “the Administration of Justice.” The Pledge of Allegiance ends by affirming that our nation stands for “liberty and justice for all.”

Carved on the east face of the Supreme Court building is the inscription “Justice, the Guardian of Liberty.” For more than five centuries, statues have depicted Lady Justice blindfolded to represent the guarantee of equal justice for everyone. Since 1963, the Supreme Court’s landmark decision Gideon v. Wainwright has guaranteed a free lawyer to any felony defendant who cannot afford to pay for one.

But all over the country, Gideon’s promise of justice for all is undercut by poorly funded indigent-defense systems and overburdened defense counsel. Gideon is among America’s most famous and beloved Supreme Court cases, and rightly so. It is virtually impossible to represent oneself properly on felony charges in an American court. Nevertheless, Gideon and the cases following it have hardly eliminated fundamental unfairness. Moreover, appointed criminal-defense lawyers are only for the truly poor — people below or near the poverty line. But middle-class people face criminal charges as well and struggle to afford minimally adequate counsel.

Liberals view the problem as simple underfunding. Thus, bar associations and most legal scholars have long focused on demanding more government money to hire more lawyers across the board. According to this view, Gideon and the cases that expanded it to misdemeanors are all part of the 20th-century march of progress toward more law, more lawyers, more procedures, and thus more justice. The solution is thus more Gideon: more government funding for the lawyers we already have (such as public defenders and legal-aid societies) and the expansion of Gideon into more areas, especially civil cases.

But the assumption that the need for adequate criminal defense has been met and we should therefore focus on other areas of the law is in fact too rosy. More than half a century after Gideon, there is still too little money, and there are still too few lawyers, even for all criminal cases. Spending taxpayer money to hire lawyers for criminal defendants is not terribly popular. As a result, New Orleans public defender Rick Teissier had to handle 418 defendants, including many accused of serious felonies, in just seven months, leading a judge to quip: “Not even a lawyer with an S on his chest could effectively handle this docket.” But while professions such as medicine are finding innovative ways to improve access and drive down costs by using technology, paraprofessionals such as nurse practitioners, and self-help advice, lawyers resist innovation and the loosening of their monopoly.

Access to justice matters. It is important for a nation founded on the rule of law. But lawyers and elaborate procedures are means to justice, not ends in themselves. Lawyers often help to promote justice, and they are important for the most complex, high-stakes cases, such as defending those charged with felonies. Felony-defense attorneys need reasonable workloads, compensation, and support to do their jobs well.

But lawyers can also get in the way of justice — by, for instance, delaying a mother’s ability to collect child support from a deadbeat dad. And lawyers come at a very high price. Budgets are tight, and it is not at all obvious that spare funds should go to elaborate criminal defense as opposed to housing, policing, education, health care, or roads.

There is, fortunately, a third way. The answer is to simplify and change the process itself. One cannot untie the Gordian knot by adding more strands of rope; it must be cut. As we argue in our new book, Rebooting Justice, it is time to take a sober second look at the “more lawyers, more justice” creed. The real world of legal problems looks like a battlefield triage center, with too many patients and too little time and money.

So we need to triage, narrowing our ambitions and focusing on the cases that are the most complex, most serious, and most meritorious. Where lawyers are truly indispensable — primarily in felony defense — we need to focus our funding in order to make legal representation effective in practice. Where the stakes are lower or the issues less complex, as in most misdemeanor cases, Americans need simpler, cheaper alternatives to giving everyone a free lawyer.

We envision a grand bargain in which public defenders would spend much more time up front investigating, negotiating, and defending those accused of felonies and in which fewer crimes would qualify as felonies. Public defenders would also have substantially more support, ranging from private investigators to forensic and medical experts. Their salaries, caseloads, and support should be comparable to those of prosecutors, and their performance standards need more teeth.

Minor criminal matters should be handled in a manner that does not require lawyers at all, by the state or the defendant. That is the other half of the grand bargain: cutting lawyers where they are not truly needed, to save more for felony defense. The government should not have to provide free lawyers for those charged with minor misdemeanors that carry little jail time and no serious collateral consequences, and states should experiment with simpler, cheaper ways to try these cases. Trained paralegals or social workers could represent defendants, or judges, court clerks, and court websites could assist litigants in representing themselves by providing preprinted forms, plain-English instructions, and helpful questioning. Prosecutors would have incentives to send less serious cases to these faster courts, reserving felony charges for more serious cases that truly deserve them.

We should also begin the work of licensing legal paraprofessionals, people who take a less intensive course of study in order to handle these simpler cases. Doing so would increase the supply of help and drive down costs. Washington State University has established a “limited-license legal technician” program to encourage the creation of paraprofessionals. Right now, the program is limited to family law and does not qualify legal technicians to appear in court, but the program could and should be expanded to include criminal work in low-level courts.

Computers and online dispute resolution can also skim some of the simplest cases up front, leaving only cases with significant factual disputes or other complicating issues for humans to handle. The vast majority of misdemeanor cases end in plea deals, and computers are excellent at guiding those sorts of negotiations. We should also simplify court procedures and rules of evidence and ask clerks and judges to assist defendants and victims to do more of the work themselves, so that they rely on lawyers less.

The current system is broken. Courts have repeatedly tried to fix it by adding more rights to free lawyers, but legislatures have repeatedly failed to fund these new rights. At some point, we must stop making the supposedly perfect the enemy of the good.

The reforms we propose are truly democratic, empower ordinary citizens, and fit our country’s history and design. For the first century of the United States’ existence, a literate citizen could represent himself in court effectively. We have drifted so far from those roots that some think simplification is impossible and argue that the only answer is to find more lawyers to handle more cases. To the contrary, the only realistic answer is to lessen the need for lawyers and to concentrate our limited funds where they are needed most.

In short, the legal system needs to go on a diet, to make itself slimmer, faster, more flexible, cheaper, and thus fairer. And lawyers need to get out of the way and let alternatives flourish.

– Mr. Barton is the Helen and Charles Lockett Distinguished Professor of Law at the University of Tennessee. Mr. Bibas is a professor of law and criminology at the University of Pennsylvania and the director of its Supreme Court Clinic. Their book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, was recently published.

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