Constitutional Law,
U.S. Supreme Court
Dec. 20, 2002
Providing Equal Justice for
Forum Column - By Erwin Chemerinsky, Daniel Grunfeld and David Lash - "Equal justice under law" may be carved into the granite entrance to the Supreme Court, but it is far from reality in California. A new report by the Commission on Access to Justice, a body established jointly by the governor, the attorney general, the California Legislature, the state judiciary and the State Bar, documents that the poor in this state lack adequate access to attorneys and the courts in noncriminal matters.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Dan Grunfeld
By Erwin Chemerinsky, Daniel Grunfeld and David Lash
"Equal justice under law" may be carved into the granite entrance to the Supreme Court, but it is far from reality in California. A new report by the Commission on Access to Justice, a body established jointly by the governor, the attorney general, the California Legislature, the state judiciary and the State Bar, documents that the poor in this state lack adequate access to attorneys and the courts in noncriminal matters.
"The Path to Equal Justice: A Five-Year Report on Access to Justice in California" is an important, thorough and sobering piece of work. The report highlights the simple truth that, without access to representation by an attorney, those who are most in danger - children, seniors, the indigent and disabled - are wrongfully losing their homes, their medical care and the daily necessities of life that the rest of us take for granted.
The legal system often holds the key to a family's stability, safety and hope. Without an attorney, many low-income families cannot protect themselves from potentially fatal domestic violence, cannot obtain medical treatment, cannot get government benefits to which they are legally entitled and cannot stave off criminally vicious con artists.
Legal services attorneys and the thousands of volunteers from the private bar who work with them use their skills to save lives, keep families together and assure a safety net for the most vulnerable. Yet, this report dramatically and conclusively shows that more than triple the level of funding is needed if we are to offer these basic protections to all who are poor and in need.
Despite California's seemingly robust economy, the number of impoverished people in our state grew by more than 1 million during the 1990s. Shockingly, this figure amounted to 55 percent of the increase in poverty throughout the United States. Legal services organizations in California, overwhelmed with need, face a community truly in crisis.
By the start of the new millennium, there was but one legal service attorney for every 10,000 low-income people in California. Attorneys are available to barely more than one-quarter of those needing representation.
These stark statistics have very human faces. As a direct result of the lack of a lawyer, Bruce, who was elderly, alone and disabled, found himself living in his car, with his dog, after he was defrauded into signing a grant deed to the only home he had ever known.
Carla, an abandoned child foundering in the foster-care system, could not be adopted for years into a new life of hope and opportunity.
Felicia, a Holocaust survivor, was destitute, without medical care and facing homelessness because her disability payments were cut off when she finally began receiving meager reparation payments for the horrors she had endured during World War II.
In 1999, California joined more than 30 other states in finally providing funding for the provision of civil legal services to the poor. The Equal Access Fund, a $10 million appropriation by the state to qualified legal services providers, has allowed those providers to recruit more pro bono attorneys and hire more staff to serve more indigent clients in new and leveraged ways.
Despite that, the state continues to lag far behind other states in funding legal access to the poor.
Faced with the tremendous need documented by the commission, more funding is required over the next five years to ensure more representation for poor people in need. That is more true than ever in these difficult budgetary times.
Spending additional resources on attorneys and volunteers who directly assist the poor is not only the fair and right thing to do but also a prudent financial investment.
Clearly, the cost of early legal representation that prevents homelessness, child abuse and the disintegration of families is far less expensive than the ultimate cost of allowing these problems to escalate.
If we do not invest in legal services now, the result will be long-term expenses and other societal ills, including chronic welfare and the need for more juvenile detention facilities and jails.
In short, the commission's report reminds us that there is no democracy, no equality and no justice if there is no lawyer to represent the voiceless. The consequences of failure can be frightening and fatal.
If we value a just society and if we are judged by how we treat the most vulnerable, then we must assure that needy children, the poor, the elderly and disabled have full and complete access to attorneys to protect their democratic rights in the greatest governmental achievement in history - the American judicial system.
Erwin Chemerinsky is a visiting professor of law at Duke University Law School. Daniel Grunfeld is the president and chief executive officer of Public Counsel. David Lash is executive director of Bet Tzedek Legal Services.
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