EQUALITY BEFORE THE COURT

There are times when our government gets close and personal with us. I cannot think of any time when this is more true than when our government drafts us into military service or when the government, either at the federal or state level, charges us with a crime. Now-a-days we have put the draft into hiatus and most of us are never charged with a crime. I remember when as a young man, I was in a car accident and was charged with causing it. I was directed to go to court and I remember the document stating the State of Florida vs. Robert Gutierrez. The actual charge was driving too fast for the conditions. I remember my emotional discomfort when I saw in black and white that I was pitted against the State of Florida. I think that hurt more than the $25 fine – and that was despite the fact I was a poor college student at the time and was facing expensive costs caused by the damage. As bad as it is to be charged, how much worse is it when a person can't afford legal representation? This wasn't an issue in my case, but for serious accusations it is an issue of significant consequence. It is our constitutional right to have representation by a licensed lawyer. So, as the familiar refrain states, if you can't afford one, one will be appointed for you.

Who assigns an indigent defendant a lawyer? A judge does. Problem solved? Not really. Take the case of George Stinney from the 1940s (a story much in the news these days); he was a fourteen year old boy who was charged, tried, and executed for the murder of two white girls – Stinney was an African American youngster. His incarceration lasted 81 days, there was no physical evidence of his guilt, the trial lasted two hours, and there was no appeal filed by his court-appointed lawyer. The only “evidence” there was was the fact that Stinney was seen with the two girls on the day of the murders and that he had “confessed.” There was no written account or a recording of the confession. There was only the testimony of the police officers stating the young boy confessed to the crimes. While this is an extreme case from a highly segregated South, it is not unique. How unjust the criminal procedure can be has been amply portrayed in our popular media. We hear of a sufficient number of convictions that have been overturned by DNA testing. My understanding is that nationally there are over 4,000 such cases to date. How many of those were cases initially defended by court-appointed lawyers, I don't know. But the point here is that the system is flawed enough and that we need to address this area of concern. If we are serious about our claims of honoring equality – we have stamps on which the word is boldly printed – then we need to do what we can to minimize the chances of an injustice occurring within our legal system. We need to keep very clear in our minds what an injustice of this type means to those victimized. It means, in terms of a faulty verdict, that a person is condemned for a crime he or she did not commit and that that means a person is doomed to years of imprisonment or even an undeserved execution – a horrible consequence to consider. Yet we seem to tolerate an unacceptable level of probability that such a result happens and happens all too often. So if something – some change in policy – can minimize this probability, we are constitutionally obliged to pursue it.

Under this light, I found that there is an experiment being conducted in Texas that deserves mention. There, in Comal County, it has been determined that court-appointed lawyers are a source of serious systemic injustices.

“The fundamental problem is that [court-appointed] lawyers in this country are oftentimes beholden to judges for appointments,” said Norman Lefstein [a Texas official] … “The allegiance of the lawyer is not principally to client, where it ought to be.”

The other problem is that clients have no meaningful control over this important professional relationship. It is hard to trust a lawyer you have not chosen and generally cannot fire.¹

These Texas officials addressed these concerns by developing a conservative approach to the problem. That is, they have begun issuing vouchers to defendants so that they can purchase legal representation of their own choosing. The idea for this policy originally was presented in a law-reviewed article. The authors of this article are Stephen Schulhofer and David Friedman. I believe that the proposal appealed to conservative policy makers because of its reliance on a market solution. It has been criticized by respectable experts – for example, Judge Richard A. Posner, a federal appeal judge, fears that defendants could paralyze a local legal system if they all begin to demand the same lawyer or a select few number of lawyers. I personally don't see this as a possibility since a lawyer can beg off a case if he or she is overloaded with existing clients. A Comal official claims that implementation of the policy can be regulated in such ways that the main concerns can be addressed. One official stated that this will not be a purely free market. It will be monitored and regulated. It is believed by the officials who are implementing the policy that there will be practical limitations so that the system will continue to function under reasonable conditions.

I will not claim I know enough to pass judgment on this option, but I believe that consideration for it is justified. My main message here is that this is an ideal “federalist” issue and has the makings of a powerful civics lesson. It focuses on a condition that, as it is now experienced around the country, puts in question any claim that our justice system is run by the principle of equality. In addition, here is a proposed policy option that, at least in terms of its stated rationale, is meant to level the legal playing field. If it works, it will put substance into the promise of the fifty year old Supreme Court decision, Gideon v. Wainwright, which ruled that every poor defendant is entitled to legal representation. Whether giving these defendants the ability to choose their attorneys will rectify the systemic problems such defendants face, only time will tell.

In any event, for civics instructors this issue is a promising one, one that directly relates to our national goal of instituting meaningful equality, one that is suitable to analyzing actual and proposed solutions, and one that reflects real, active concerns with ample local examples. It has the promise of engaging students on a meaningful national problem.

1Liptak, A. (2013). Need-blind justice. The New York Times, January 5, Sunday Review section, p. 4. The facts related in this posting regarding this Texas experiment are contained in this source.

A TRANSACTIONAL AIM

If you are new to this blog, let me point out that a recurring claim I have been making in previous postings is that in the past fifty to sixty years, civics courses around the country have been guided by a prevalent view of government. That mental construct I have entitled the natural rights construct. In essence, this view sees government as the ultimate protector of our individual rights. As a philosophic statement, the construct is a moral view. It holds, as a moral imperative, that government should be established and maintained in order that each of us is able to determine the life we want to lead; we are to be unfettered to do what we wish as long as we do not interfere with others' rights to do likewise.

Government is needed under this view, but only to protect this basic moral claim. “Government that governs least, governs best” is a standard adage associated with the natural rights view of governing. Yes, there might be some offhand allowance for the importance of community or an encouragement for people to participate in community affairs – after all, a person might determine that such activities add to his or her personal happiness – but the focus is on the individual and his or her rights. Surely, under the natural rights view, there must not be any laws dictating any such involvement; it is only suggested as the “thing” good citizens do.

With a focus on describing and explaining a “rights-protecting” institution, the study of government is centered on teaching the structure, processes, and functions of government and governance with a more or less mechanistic perspective. Why? Several reasons, but prominent is the following: among our rights is the right to compete for favorable governmental decisions and benefits. But one must remember that the benefits can be of only a certain type and amount. After all, the goal, under this view, is for the least governance. But – and here is the irony – in this day and age, even minimal aims call for extensive government and governance. To protect our rights, for example, a government must sustain an adequate military. This simple determination, though, calls for enormous outlays of funds so that the government can buy the necessary weapons and other related goods and services – expenditures of hundreds of billions of dollars annually. Who will get that business? We all have the right to compete. While most of us will not compete to manufacture the newest tank, we might want to compete for other outlays in serving our military or other governmental operation. In order to be able to compete, to be able to exercise this right, we need to know stuff.

Well, our civics instruction is meant to teach you that knowledge, in terms of governmental structure, functions, and processes, at least at an introductory level. That is the type of knowledge a government or civics course will contain and try to impart to its students. As evidence for this overall view, let me share with you a list of intended outcomes of an American Government course from a document that was issued by the Dade County Public Schools¹ system in the mid 1980s.

After successfully completing this course, the student will be able to

1. Contrast the structure and function of government at all levels in American political life.
2. Analyze the basic principles of political organization embodied in the Constitution.
3. Contrast the processes by which power is passed on within all levels of the three branches of government.
4. Analyze the effectiveness of influences on governmental decision making by the support and dissent of individuals and interest groups using the criteria of actual changes initiated or completed.
5. Trace the relationship between majority rule and individual rights as it is reflected in our legal and governmental system and as it evolved through differing interpretations of the Constitution.
6. Analyze the strengths and weaknesses of our federal system of government to deal with those domestic and foreign problems facing our nation today.
7. Show relationships between American political traditions and the American way of life (social, economic, and religious ideals).
8. Demonstrate the importance of participating in community, service, civic importance, and involvement in political activities.
9. Utilize appropriate vocabulary, geographical, reference/study, critical thinking, and decision-making skills.

I know that when I, as a government teacher, reviewed these stated curricular aims, I interpreted them, collectively, as a fairly neutral stand about any governmental or political ambition, either by government or government officials. And yet I do not interpret our Constitution in that light. What we have here is a justification for transactional politics – “I do something for you, if you do something for me.” Instead, I believe our Constitution is a compact among all of us in which we promise to work toward our common welfare.

Our Preamble to the Constitution is more than just a goal statement for establishing a government as an arena for competing interests. This blog has been dedicated to making and explaining a mental construct that promotes a more proactive approach toward striving for the commonwealth of the nation that is based on republican principles and democratic processes. Under this other, federalist, view, civics instruction would present content that encourages, not dictates, a shift away from transactional politics to a view of a shared partnership, one in which we all sense a more palatable common fate.

1The name of this school district has since changed; it is now known as the Miami-Dade Public Schools. This school district is among the five largest in the nation.