In Texas, From a Chief Justice, Welcome Candor About Unequal Justice

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Last Wednesday, in Austin, Texas, a remarkable thing happened. In a state where the promise of equal justice under law often is a farce, where poor people and people of color far too often are subject to unfair treatment by prosecutors, police, judges, jailors and jurors, the Chief Justice of the state supreme court spoke out at length with great clarity and candor about the desperate legal conditions of his fellow Texans and the immediate need to secure for them all the right to "liberty and justice." (Note good update below).

Wallace B. Jefferson, the first black justice on the state's supreme court, the first black chief justice of the state's supreme court, the man appointed by Republican Gov. Rick Perry to replace Alberto Gonzales, offered his remarks in his annual "State of the Judiciary" address and his timing could hardly be better. Next week, America marks the 50th anniversary of the United States Supreme Court's landmark decision in Gideon v. Wainwright, which was designed to secure the right to counsel for people too poor to afford their own attorney.

Jefferson's speech is yet another detailed reminder of how far we've come from the premise and the promise of Gideon. (Last week, on this topic, I wrote here about the Alabama case of Christopher Lee Price, a death row inmate whose constitutional right to counsel has been consistently denied by the courts. Next week, in advance of the March 18th anniversary of the decision, we'll be posting here at The Atlantic a special piece on the legacy of Gideon). In his speech, Justice Jefferson first posed these questions:

The question is not how is the Judiciary? We must ask instead whether our system of justice is working for the people it has promised to serve. Do we have liberty and justice for all? Or have we come to accept liberty and justice only for some? So let's not limit our inquiry to whether the judiciary is healthy. Courts exist not to perpetuate the judicial branch for its own sake, but to ensure that the conflicts human beings encounter, whether criminal or civil, are adjudicated in a neutral forum, at an efficient price, producing fair outcomes.

Next, the justice highlighted the growing difference between justice for the rich and justice for the poor:

For those who can afford legal services, we have a top-notch judicial system. Highly qualified lawyers help courts dispense justice fairly and efficiently. But that kind of representation is expensive. A larger swath of litigation exists in which the contestants lack wealth, insurance is absent, and public funding is not available. Some of our most essential rights - those involving families, homes, and livelihoods - are the least protected. Veterans languish for months before their disability, pension, and educational benefits arrive.

As a result of the recent financial crisis, lower- and middle-income homeowners and tenants face foreclosure and eviction. Ever-increasing numbers of consumers and small businesses have filed for bankruptcy. And few can afford a lawyer to guide them through these crises.

Then Justice Jefferson offered some grim details highlighting the scope of the problem:

Nearly six million Texans qualify for legal aid. Yet our state's legal aid programs meet but 20% of the needs of indigent Texans, forcing many to go it alone in our courts. In South Texas, 2.6 million people qualify for legal aid. That means that there are 21,000 potential clients for each lawyer employed by the region's main legal aid office.

He thanked state lawmakers, for continuing to fund state legal aid programs, and lawyers, too, for their pro bono work on behalf of the state's poor. But, Justice Jefferson added: "even if we were to require every Texas lawyer to represent at least one indigent client, we would serve less than 40% of the poor who seek help." Next, noting the looming anniversary, the justice turned directly to the legacy of Gideon. He said:

To sound Gideon's trumpet in Texas, we must insist that criminal defendants have qualified counsel who are equipped with the time and resources to mount a meaningful defense. Texas ranks 48th in per capita funding for indigent defense. As alarming as that figure sounds, it masks extraordinary improvements implemented here in just a few short years.

And then Justice Jefferson listed some of those improvements-- the Regional Public Defender Office for Capital Cases, the state's Indigent Defense Commission, the Harris County Public Defender Office-- before acknowledging "a caveat." As with basic civil legal services, Justice Jefferson said, "funding for indigent defense does not currently meet the demand. State funding through the Commission covers only 15 percent of the total indigent defense expenditures in Texas." Then he asked for more money:

For that reason, the Commission's appropriations request seeks to close the funding gap, providing relief to counties by sharing the costs of indigent defense equally with county government. We have seen the Commission's success in forging successful programs and partnerships with county governments. I encourage you to increase funding to the Commission so it can carry on this important work and ensure effective representation for all indigent defendants.

There are many other remarkable passages in the speech. For example, Justice Jefferson called for the "creation of a commission to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms." And he decried the state's juvenile justice system. He said:

We are criminalizing our children for non-violent offenses. Students receiving these tickets are stigmatized. They often miss class or drop out of school altogether. We must keep our children in school, and out of our courts, to give them the opportunity to follow a path of success, not a path towards prison.

His speech, Justice Jefferson noted, "is a call to arms" and, indeed, it is. No one in Texas now can say they did not know of the grievous legal conditions under which millions of their fellow citizens labor. No one can say, 50 years after the Supreme Court recognized a right to counsel in state cases, that there is equal justice under law in Texas. One question now is: what more is Texas going to do about this? Another question is: if state officials continue to do less than they should, how bad will it have to get in the Lone Star State, or anywhere else in America, before the justices in Washington make good on the heralded promise they made in Gideon?

Update: Here's an immediate and good response from Stephen Bright, President of the Southern Center for Human Rights and a visiting law lecturer at Yale Law School. Bright is one of the nation's leading voices on the topic of the right to counsel:

As great as it is that Houston now has a public defender office - and it's a good one - it handles only 5 % of the criminal cases in Houston.  And, as you point out, the Indigent Defense Commission, chaired by Sharon Keller, contributes only 15 % of the cost to the county-based system of indigent defense which is under the control of the judges who often have objectives other than zealous representation for the lawyers appointed to defend the poor.


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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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