The Political Economy of Gideon and Civil Gideon
Chapters 2 and 4 lay out how little access most Americans have to justice. Chapters 3 and 5 briefly trace how America reached this point. This chapter seeks to explain why these systems look the way they do. Our access-to-justice problems have persisted and accelerated for years. Why? None of the professionals, the ones who control the levers of power, feels the acute need to change.
Consider this common scenario. You are a single, divorced mother of two. Your ex-husband earns much more money than you do. Your divorce was ugly and your husband has never let go. Since the divorce, he has filed a claim for full custody of your kids every three years or so. Each time, he hires a lawyer and claims “changed circumstances,” although to you the circumstances are very much the same. Your ex-husband is a vindictive man who is using his money to harass you in court.
The first time he filed one of these suits, you tried to handle it on your own. But the people in the clerk’s office would not answer your questions. They do not see giving legal advice as part of their job and fear being blamed if they do so. The judge was impatient when you were confused about which witnesses or documents to bring or how to present them to the court. You went to the legal aid office, but you earned too much money to qualify for a free lawyer. You struggle to respond to a blizzard of letters and paperwork from your ex-husband’s lawyer. After one particularly bad court experience, you decided you might actually lose your kids if you did not turn things around. You borrowed the money from your parents and hired a lawyer. You eventually kept custody and “won” the case. Now you simply accept that if you want to keep your children, you will find the money for a lawyer by hook or by crook.
In this example, the professionals all benefit, unconsciously, from the way the system works. The lawyers receive continuing sources of work. The judge does not have to deal with another pro se litigant, making processing the case much easier. And the clerk’s office does not have to answer your confused questions. None of them suffers, so none feels pressure to change. Who suffers? You suffer. But you probably blame your ex-husband and his lawyer more than you blame the judiciary or the underlying procedures. The winners and losers in the story help explain why our broken system persists. The people who are in court every day are used to a system that funnels every litigant into hiring a lawyer. The rest of us do not have to face the problem because we appear in court pretty rarely.
Lawyers’ Interests and Incentives
The answer to the “why” question differs somewhat for civil and criminal justice, but the fundamental answer is the same. Courts, court processes, and the regulation of the legal profession effectively benefit the repeat players: judges, clerks, prosecutors, public defenders, and lawyers. This effect appears at every level of the system, from micro decisions like requiring formal pleading and enforcing the rules of evidence in simple cases to macro decisions like requiring three years of law school.
Economists and political scientists often use what they call “public choice theory” to analyze the institutional incentives of government actors. Public choice theory, like classical economics, assumes that government actors are rational, self-interested, and maximize their own interests and happiness.
While the public choice assumptions about human behavior seem common-sensical, they actually represent a sea change in how we view the government. Early political scientists assumed that government actors sought primarily to serve the public good. Many lawyers and law professors assume that judges are motivated by a desire to do justice or at worst to pursue their own policy goals. Because judges cannot increase their salaries by working more, it was harder to see other incentives. Public choice assumes that other factors play substantial roles, like judges’ incentives to make their jobs easier, win promotion to higher judgeships, and earn acceptance and admiration. The same is true for other repeat players in the justice system.
Legislators are easier to understand. They seek election or reelection, so they focus on garnering votes or campaign contributions. They will thus be especially solicitous of concentrated, well-organized, or moneyed interests, because those are the groups most likely to fund their own campaigns (or an opponent’s).
Nevertheless, just as classical economists have had to accept evidence of human altruism and other economically irrational behaviors, public choice scholars have had to admit that government workers are often motivated by desires to serve the public, implement strong policy preferences, or simply do a good job. Though public choice cannot explain every governmental action, it is a simple, elegant, and powerful way to explain much behavior.1 Note also that most of the incentives described below are unconscious. No one sat down and deliberately designed the flawed criminal or civil justice systems. No one wants to hurt pro se litigants or to tilt the playing field against them, and most would insist sincerely that they are serving (their conception of) justice. Nevertheless, the unconscious incentives that drive the system are probably more powerful and important than the conscious ones. Consciously, most of the players familiar with the current systems of criminal and civil justice are concerned and want to improve access to justice, including judges, defense lawyers, prosecutors, bar associations, and advocates for the poor.
These good motives make the ongoing deterioration of these two systems a puzzle. Why have they gotten worse rather than better, despite the sincere good efforts of well-meaning participants? Part of the answer is the insistence on a single, failed solution: more individual work by free lawyers, provided either by the government or pro bono. Part of the answer is that while the current system is unfair in many ways, it minimizes the pressures on the repeat players. Part of the answer is that access to justice presents a Gordian knot that no single player can fix without multiple other players’ cooperation. These coordination challenges make it hard to organize realistic change and easy for any one player to blame the others.
Lawyer Regulation Is Run Almost Exclusively by Lawyers
American lawyers have a unique regulatory structure. Doctors, architects, engineers, teachers, and other professionals are all regulated in the first instance by state and federal legislatures. The legal profession, by contrast, is governed in all fifty states by state supreme courts. This means that state supreme courts have the final word on entry to the profession, discipline of the profession, and often on policing the profession’s monopoly on legal work.2
What explains this unique setup? The obscure constitutional doctrine of “inherent authority.” At the turn of the twentieth century, state supreme courts began to claim an inherent authority to govern the regulation of the legal profession. In most states, this authority was not explicitly granted by the state constitution. Instead, courts implied this inherent authority from the existence of a judicial branch and constitutional language barring one branch of the government (like the legislature) from exercising the powers of another branch of the government (like the judiciary).
The real question is whether regulating the legal profession is really an exclusive power of the judicial branch. Common-law courts come with some naturally implied powers, like the power to sanction litigants or lawyers. The new inherent-authority doctrine extended these powers to include control over the legal profession. Courts all over the country noted that lawyers are “officers of the court” and thus reasoned that courts, not legislatures, should govern their regulation, even though legislatures used to have or share this responsibility.3
State supreme courts have used this power in a number of ways, including controlling the admission and discipline of lawyers, requiring membership in the state bar as a condition of licensing, and defining, investigating, and punishing the unauthorized practice of law. State supreme courts have also overturned many legislative enactments that limit their regulation of the legal profession.4
The inherent-authority doctrine is a state constitutional doctrine. That means that it is not subject to legislative reversal or encroachment. Because these decisions are constitutional, citizens cannot do much to overturn them: They would have to amend the state constitution or lobby the state supreme court. Few citizens care enough to try to amend the constitution or to lobby state supreme court justices. This is especially so because few people know that state supreme courts govern the regulation of lawyers and state supreme courts are (for otherwise worthy institutional purposes) largely closed to citizen lobbying.
The inherent authority cases are rather thinly reasoned. There is intuitive appeal to the idea that the creation of a judicial branch naturally means the creation of common-law courts, complete with their common-law powers. Nevertheless, legislatures solely or jointly controlled lawyer admission throughout the 19th century, so it seems unlikely that regulation of the legal profession was one of the obviously included constitutional powers.5 And state supreme courts have not limited their power to admission or discipline; on the contrary, they have stretched to the far reaches by punishing the unauthorized practice of law.
All state supreme court justices are former lawyers, so the American legal profession has a unique claim to self-regulation. Public choice theory suggests that self-regulation would prove quite protective of the profession’s interests, and that has indeed been the case. This is partially because of empathy and sympathy. Justices will naturally see most regulatory issues from the point of view of the legal profession. It is partially because the public has limited access to the justices and the legal profession has extraordinary access. It is partially because justices have busy, full-time jobs they like (hearing and deciding cases), and regulating lawyers is tangential to their primary work. As a result, in many states, the justices have given as much of their regulatory authority as possible back to bar associations to handle.
Bar associations have taken the public interest into account, but when there is a conflict between the profession and the public, the profession has generally won. The regulation has proven helpful to the profession by any measure. It is beyond the scope of this book to detail the various examples of self-interest, but briefly consider how differently the organized bar treats admission (a topic of great importance to licensed lawyers) and discipline (a less beloved topic). The American legal profession is hard to get into, but much harder to get tossed out of. Bar admission is governed by a great number of quite stringent requirements. In almost every state, applicants must complete an undergraduate degree, three years of an ABA-accredited law school, and a lengthy character and fitness process, and pass the bar exam and the Model Professional Rules Exam.
By contrast, attorney discipline is and always has been weak. There are backlogs for investigations. In most states, the process is secret. As many as nine of ten complaints are summarily dismissed, especially if they concern “mere negligence,” which is generally not covered by the disciplinary system.6
All of this means that some potential solutions for the access-to-justice crisis, like creating the lawyer equivalent of nurse practitioners or loosening the protections against the unauthorized practice of law, are unlikely to occur. State supreme courts are institutionally conservative and generally uninterested in taking steps that will harm the legal profession.
Legislators Lack Incentives to Change Courts Radically or Fund Free Lawyers
Aside from inherent authority, there are two other reasons for legislatures to tread lightly around courts and the legal profession. First, many legislators are themselves lawyers. The effect is not as great as with state supreme courts (where all the justices are lawyers), but it is still notable. Second, legislatures are appropriately leery of making wholesale changes to courts or court procedures without judicial and lawyer support. Judges are still quite popular in this country (usually much more popular than legislators), so legislators think twice before crossing them.
There are some areas that are largely within legislative control, such as funding. Despite lawyer lobbying, legislatures have resisted funding free or subsidized lawyers for the poor, especially during times of austerity. Poor people are less likely to vote or to contribute to political campaigns, making them a limited political force. Felony criminal defendants face a double handicap. Felons are unpopular with the general public and are also usually ineligible to vote.
Funding also suffers when pitted against other critical needs. Critics of the current system often describe the access-to-justice crisis in a vacuum, without weighing competing priorities. In recent years, state and federal legislatures have cut funds for medical care and insurance, food stamps, and direct cash assistance. Even though justice is important, it may pale in comparison to food, shelter, medicine, and education. Legislatures are naturally loath to fund court-ordered rights like Gideon, especially when they assist politically unpopular groups. If the governmental program at issue were popular, courts would not have to order it; legislatures would supply it naturally.
The sheer size of the problem and the suggested fix also makes triage the likeliest legislative result. The problems in civil and criminal court are serious enough that legislatures will never hire enough lawyers to solve them. In comparison, the status quo seems much more realistic. If the problem is insoluble, tinkering around the edges is not only appropriate, but the only available remedy.
Legislatures are also leery of funding for lawyers for the poor because victories for the poor may come at the expense of other, more powerful interest groups. This is obvious in criminal court: Crime victims, police officers, prosecutors, and prison guards are all more powerful lobbies than criminal defendants. Even in civil court, aggressive lawyers for the poor antagonize powerful interests such as landlords, government bureaucrats, and polluters. (Recall Chapter 5’s account of Ronald Reagan’s fights over the Legal Services Corporation’s activities.) Thus, Congress has barred the LSC from lobbying, handling class actions, litigating prison conditions or desegregation, and representing most noncitizens apart from green-card holders. Consider also the periodic spats between state legislatures and aggressive clinical law programs over clinics’ suing states or others for environmental or civil-rights violations.7
In short, legislatures stint on funding because money is scarce and other, more powerful interest groups do not favor it. The trajectory of LSC funding bears this analysis out. Except for a brief stretch in the 1960s and 1970s and a couple of years in the early 1990s, LSC has seen its funding and scope of practice continue to erode. Correlation does not equal causation, but note that the two eras of growth for LSC coincided with Hillary Rodham Clinton’s chairing the Board of Directors (in the late 1970s) and being First Lady, so having powerful friends does help. LSC’s survival itself is actually an impressive testament to the lobbying power of the ABA, advocates for the poor, and LSC itself.
Criminal defense has also suffered. Funding for public-defender offices and appointed counsel has been cut repeatedly over the years and lags well behind funding for prosecutors’ offices, police departments, and jails. Spending more on criminal defense is a hard sell. Many Americans believe the criminal justice system is already too lenient on criminals and that spending more would free more of the guilty. (Recall from Chapter 3 the ambivalent, conflicting sales pitches that were needed to start public-defender offices in the first place a century ago.) This also explains why funding for the police or prosecutors is much more popular.
Why Don’t Judges Order More Funding?
Judges have different incentives from those of legislatures. They sit in court every day and are often uncomfortable with the imbalances between the poor and everyone else. Why have the courts chosen not to order increased funding?
Part of the answer is that they cannot. Legislatures control funding, not courts. Except in the most exceptional circumstances, courts cannot order legislatures to make budgetary decisions. Courts hesitate even to order increases to their own budgets; they are much less likely to risk demanding a set level of funding for criminal defendants or pro se litigants. Some of this is appropriate institutional reluctance. Legislatures are in the best position to balance competing funding demands and, as long as criminal defense is funded at some sort of minimum level, courts are unwilling to order more.
Every time a court orders a legislature to fund something at a certain level, it plays a dangerous game of chicken. What if the legislature refuses? What if it makes offsetting cuts to the judicial budget? There is a reason that Alexander Hamilton, in The Federalist Paper No. 78, called the judiciary the “least dangerous” branch; courts must avoid overreaching in dealing with other branches, because, if other branches refuse to cooperate, they have few tools to enforce their orders. Judges regularly join bar associations to lobby for more funding for criminal defense or legal aid, but actually ordering a legislature to do so is much, much rarer.
Gideon + Strickland = A Workable Balance for Everyone but Criminal Defendants
Gideon and its progeny announce a powerful right to a free lawyer in ringing tones and much fanfare. And yet when it came time to put some teeth into the guarantee, either by requiring real lawyer competence or limiting individual lawyers’ caseloads, courts have largely been silent. Why? Some of the answers are the institutional concerns listed above. But some of the reason is that the system works pretty well for everyone involved except for criminal defendants and, arguably, public defenders.
Judges, bar associations, and even prosecutors have been big fans of Gideon. Obviously, they appreciate that Gideon makes the entire process fairer, both in theory and in practice. Gideon, Argersinger, and their progeny also make everyone else’s job easier. For judges, clerks, and prosecutors, handling cases is much harder when defendants lack lawyers. Non-lawyers are unfamiliar with laws and court processes. They also tend to be much more emotional about their cases. They interrupt. They ask weird questions. They ramble about legally irrelevant facts. This happens often even when they have defense lawyers. Without defense lawyers, the interruptions are constant.
Having a defense lawyer in every case that might result in jail time means that judges can count on a trained professional to expedite each case and handle the in-court part of proceedings, which the judge cares about the most. Judges are certainly upset when criminal defendants complain about defense lawyer indifference, but that hardly compares to judicial impatience if a lawyer repeatedly fails to appear in court or jams up the court’s docket with sloppy lawyering.
Remember that judges are under tremendous pressure to clear their dockets. Since the 1970s, in both state and federal courts, the number of judges has risen much more slowly than the number of criminal cases. This has, predictably, resulted in a backlog of cases and powerful pressure to clear that backlog. Trials are long and usually follow various rounds of motions, hearings, discovery disputes, and the like, so trying to complete more trials or hear more motions is hardly an efficient way to clear the backlog. Instead, pleas came to replace criminal trials. Glenn Reynolds argues correctly that our system is now “basically a plea bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”8
The plea-driven system serves both prosecutors’ and judges’ interests in doing their jobs. It makes their work easier, faster, and more under their control. It processes the maximum number of cases in the most efficient (read: quickest) manner. It avoids the unpredictability and expense of juries. Last, because it requires voluntary pleas, it seems at least superficially as fair and accurate as a system centered on trials.
That advantage for prosecutors and judges, however, is a disadvantage for defendants: The odds of avoiding conviction when pleading guilty are basically zero. The odds of avoiding conviction are thus always better at trial, even in an overwhelming case, because there are so many moving parts and juries are unpredictable. Defendants thus need some convincing to accept pleas over trials.
To sweeten plea deals, prosecutors offer plea discounts by dismissing or reducing the seriousness of some of the charges (which are called charge bargains), offering a suggested lower amount of punishment (sentence bargains), or both. The flip side of the plea discount is the trial penalty: Defendants who refuse to take plea deals face additional and more serious charges, and prosecutors push for more punishment if defendants are found guilty. Judges are key players in the system, because defendants and defense lawyers must believe that judges will impose lower penalties if defendants plead guilty but heavier punishments if they refuse to plead and are convicted at trial. Empirical evidence confirms that judges impose a trial penalty, which creates an increasingly wide spread between plea offers and threatened post-trial sentences.9 All of this drives the system towards more and more plea bargains.
Overloading public defenders and underpaying appointed counsel also create pressure to plead. Defense lawyers for the indigent have so much work, or are paid such small, capped amounts, that they are forced to accede to plea bargains again and again. Trials require a long time to investigate, prepare, and conduct. If a well-meaning public defender decided to try even a quarter of her 100+ felony cases a year, there would not be enough business hours in the day to try the cases, let alone investigate and properly prepare them.
Likewise, because of low hourly rates and fee caps, appointed private lawyers often get paid the same whether they try a case or plead it out with minimal work, as Chapter 2 explained. This means that, when an appointed lawyer takes a case to trial, she is hemorrhaging money. Trial work for appointed lawyers is basically a costly pastime, because a quick disposition is always much more profitable.
There are also significant institutional incentives for defense lawyers not to rock the boat by filing too many motions or forcing too many trials. Judges and prosecutors are supposed to take each case on their own merits. But they are also only human, so if they decide a certain lawyer is pushing too hard or making their lives unnecessarily difficult, naturally they may retaliate. This is especially dangerous for appointed counsel who depend on judges for appointments. Consider game theory. When behavioral economists repeat the same game with the same players, cooperation between the players naturally rises. This is because, in a repeat-player game, defectors can be punished in the next game. When the economists run the game repeatedly with a mix of repeat players and new (non-repeat) players, the repeat players still drift towards cooperation, often to the detriment of the inexperienced players. In criminal court, the defendants are the obvious non-repeat players (along with the victims and witnesses). It is thus unsurprising to find the repeat players drifting into cooperation. Defense lawyers who refuse to play ball will stand out and may receive harsher treatment.
The result? Even the best-meaning criminal defense lawyers for the poor have become key players in the plea-bargaining assembly line. Some of these lawyers have been transformed from zealous advocates to cogs in the plea machine, explaining to their clients why they should take the plea offers they can get rather than risking trial. This account does not imply any individual malice or bad intent on anyone’s part. To a certain extent, it may be vaguely analogous to an abuse victim’s learned helplessness, fatalistically resigned to their role in a broken and overwhelmed system. All of the repeat players are victims of rising caseloads and limited time, money, and support. But whatever the actors’ motivations are, the assembly line works. Cases disappear, and frequently disappear early enough to clear backlogs, before lawyers or judges must invest much time or effort.
This system also lets judges unconsciously ration precious trial time. Because the plea system punishes going to trial so heavily, the only defendants who will risk trial are those utterly convinced of their innocence (who can force trials by refusing all plea deals), those who can afford the very best defense lawyers and are willing to risk trial, and those convinced that the plea deal is very unfair. Prosecutors and defense lawyers alike agree that most criminal defendants are guilty of the crimes they are charged with, or something very close to those charges. The system wants to push them into pleas and extracts significant costs for demanding trials. That explains why only a few percent of all criminal defendants exercise their right to trial.
The current shabby funding of Gideon also mutes that case’s obvious disadvantage: More lawyers with more time to work on each case would presumably mean more criminal defendants going free, including some guilty defendants. A fully funded Gideon would also likely result in more motions and especially more trials, meaning lots more work.
Perhaps more surprisingly, prosecutors prefer to face opposing counsel as well. We tend to think of prosecutors and defense lawyers as adversaries fighting in a zero-sum game, in which everything that hurts defendants must help prosecutors. But that is not so. When facing unrepresented defendants, prosecutors must endure their flailing around with the rules of procedure and evidence, and their overoptimistic expectations of being acquitted or receiving unrealistically low sentences.
By contrast, defense lawyers, like prosecutors, are detached professionals and repeat players. For the most part, they have seen plenty of convictions and sentences and lack their clients’ overoptimism and self-serving perspectives, as well as their personal stakes in the outcomes. As repeat players, they also know the going rates for particular crimes and can develop bonds of trust with prosecutors, making it possible for them to strike deals. And, like prosecutors, they get little or no extra pay for investing more work. Both sides understandably prefer to minimize their workloads, clear their dockets, and avoid embarrassing losses and worst-case results at trial. Thus, the spread of lawyers on both sides, coupled with the increasing complexity that lawyers breed and thus the increasing benefits of avoiding long trials, gave rise to plea bargaining in the first place. Lawyers and judges are comfortable with this system, in part because they have grown used to it, in part because efficiency makes sense to them, and in part because it makes all the insiders better off.10
Most prosecutors are interested in maximizing their conviction rates as efficiently as possible. Plea bargains are the obvious way to do this. Prosecutors use the tools just described, plea discounts and trial penalties, to push for pleas. But they also have substantial and virtually unregulated authority to punish lawyers or defendants who step too far out of line. And the press of business forces most of their adversaries to be pliable.
One remarkable aspect of the current system is how heavily regulated every part of criminal justice is from arrest to trial to jail, except for plea bargaining. The Supreme Court has been largely silent on plea negotiations. There are lots of procedures that regulate the entry of a plea: For instance, judges must warn defendants of the various trial rights they are giving up and of any minimum and maximum sentences. And a few recent cases apply Strickland to defense lawyers’ own performance, requiring them to provide minimally competent advice about the possibility of deportation and the advisability of a plea.11 Otherwise, however, the substance of negotiations, and particularly the spread between the plea offer and the likely post-trial sentence, have been wholly unregulated thus far. This lack of regulation gives prosecutors tremendous discretion and all but bulletproofs guilty pleas from later challenge.
Gideon also works well for the legal profession writ large. The ABA and other bar associations have long supported free lawyers for criminal defendants, the more the better, with higher pay if possible. Consider Chief Justice Burger’s concurrence in Argersinger. He quoted favorably and at length from the ABA’s Report on Standards Relating to Providing Defense Services. The report argued that lawyers should be appointed “in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed” because “[c]ounsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused.”12
Keep in mind that the ABA is, at bottom, an industry group that benefits if the government requires and pays for its members’ services. Even if these jobs are not particularly well paid, they still employ more lawyers. There are multiple market reasons why the legal profession experienced a massive boom in numbers and pay between the 1960s and the 1980s, but the hiring sparked by Gideon, Argersinger, and legal aid were significant factors, generating a large new demand for lawyers.
The ABA and other bar associations are in the business of lobbying for full employment for lawyers, and government work for the poor has been a prime strategy. This is not to downplay the ABA’s sincere and longstanding hard work on access to justice. Nevertheless, it is naive to assume only altruism on the part of an industry group. There were certainly self-interested reasons for supporting access to justice as well, as shown by the ABA’s resistance to letting non-lawyers offer legal help to the poor.
Private criminal defense lawyers likewise benefit from the current state of affairs. Because of staffing loads, fee caps, and urban legend, criminal defendants fear that public defenders or appointed lawyers are not “real lawyers” and will do a bad job on their case. Even though many public defenders provide experienced, zealous assistance despite staggering caseloads, defendants have little way of knowing that. Thus, when asked whether he had a lawyer, one defendant unintentionally quipped, “No, I had a public defender.”13 Defendants are trained to know that if they value their freedom and can afford it, they should hire the best private lawyer they possibly can.
The treatment of the poor in an assembly-line justice system gives an edge to the sliver of defendants who can afford more justice. Wealthier defendants can pay lawyers and investigators to do all of the work the ordinary poor defendant does not receive. This alone is a massive advantage in a system based upon negotiated plea settlements: The wealthy are tougher foes who profit from having superior bargaining power.
A poorly funded Gideon unintentionally creates a two-tier justice system. There is the system available to those who can pay for a lawyer’s time and energy, and the system for everyone else. The upper-tier system is full of opportunities to beat or (more often) reduce charges and sentences, but this requires significant amounts of time (read: money) for case investigation, expert analysis, and legal work on motions and at trial. Most well-off defendants still find plea discounts irresistible in the end, but these defendants can use their greater ammunition and greater readiness to go to trial to drive harder bargains. In the lower-tier system, the repeat players (judges, prosecutors, and defense lawyers) try to plead out the most cases in the least time. Overburdened, publicly funded defense lawyers are forced to be more pliable in bargaining, and prosecutors know it.
Law and economics scholar and federal judge Richard Posner sums up the strengths of the current system rather cynically:
I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented. But if we are to be hardheaded we must recognize that this may not be entirely a bad thing. The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for the defense of indigent criminal defendants may be optimal.14
Posner’s cynical economic calculation of the price of justice has proven predictably controversial. But whether or not you agree with his endorsement, he has correctly identified how the system works. Americans accept some level of wrongful conviction and poor lawyering because, system-wide, the plea-bargaining assembly line lumbers on at relatively low cost.
Some Solace for Criminal Defense Lawyers
Although this sounds like a tough deal for criminal defense lawyers, they are—like prosecutors and judges—largely shielded from external negative consequences, whether on appeal, by bar licensure agencies, or in legal malpractice.
Start with appellate review. Strickland guarantees that ineffective assistance of counsel will be handled with great deference to strategic decisions, making later reversals based upon poor lawyering vanishingly rare. Moreover, the strange logic of criminal appeals means that almost every appeal includes a claim of ineffective assistance of counsel, because most other alleged errors can also be dressed up as ineffectiveness. This has several benefits. Appellate courts are very much inured to these claims and assume that they are mostly strategic and specious. It also removes the sting for the criminal defense lawyer. Every lawyer loses sometimes, and when criminal defense lawyers lose, a challenge claiming ineffective assistance is inevitable and thus just a part of a day’s work.
Strickland argues that courts must defer to criminal defense lawyers; if lawyers feared broad ineffectiveness claims, the Court reasoned, they would grow less willing to defend the poor. The Strickland Court should have known better. Virtually every criminal defense lawyer has faced a claim of ineffective assistance of counsel, so it is just par for the course. Being accused of ineffectiveness is largely meaningless, and courts ratify all but the most egregious examples as supposedly strategic decisions.
Nor is there much threat of legal malpractice liability. In most states, a former criminal defendant who sues for legal malpractice must prove not only that he would have won his criminal case, but also that he is actually innocent.15 The actual-innocence requirement immunizes a great deal of criminal defense lawyering from scrutiny, such as failures to suppress illegally seized evidence or confessions made without Miranda warnings. It also means that many criminal defendants have no recourse if their lawyer misses obvious procedural or investigative irregularities in their cases, even if these oversights cost defendants their best hopes for acquittals or favorable pleas. Even innocent defendants find it extremely hard to prove their innocence after they have been convicted.
Furthermore, in most jurisdictions, plaintiffs cannot sue for legal malpractice until after they have been cleared of their previous charges on appeal. This requirement greatly delays malpractice claims.16 And after a criminal court rejects a claim of ineffective assistance, in many jurisdictions the collateral estoppel doctrine bars a later malpractice action.17 Thus, Strickland does double duty: It is both very deferential on appeal and also insulates many lawyers from later malpractice liability.
Nor will wronged criminal defendants have much luck with complaints to lawyer regulators. Attorney discipline is, and always has been, weak. Even with recent improvements, discipline is rare. In 2009, there was roughly one complaint filed for every ten American lawyers (125,596 complaints out of 1.2 million licensed lawyers).18 The actual problem is probably greater, because filing a formal complaint is notoriously difficult. Moreover, these complaints are disproportionately filed against solo and small-firm practitioners, who are more likely to be criminal defense lawyers, as opposed to other types of lawyers such as in-house counsel, government, or big-firm lawyers.
Bar authorities dismiss many of these complaints out of hand. A majority of the 2009 complaints (66,160, or 53%) were dismissed without any investigation. After investigation, only one-twentieth of the complaints (6,900) resulted in formal charges. Only one out of every twenty-five complaints (5,009 lawyers) resulted in a public sanction, and only 0.6% (798 lawyers, representing 0.06% of all lawyers) were disbarred nationwide. Further, in most jurisdictions the only publicly available information is a public sanction, so as many as 120,000 of the 125,000 complaints remain hidden from public view.
The cases that actually end with a sanction tend to involve two types of lawyer misconduct that are easy to prove: (a) stealing from clients or (b) failing to do any work at all, often due to drug use or alcohol abuse. The number of lawyers who have been disciplined for run-of-the-mill poor performance is effectively zero. So bar authorities do far less to weed out incompetent lawyers than they do to keep non-lawyers from competing with them.
The Civil Side of the Ledger
As Part II notes, the pro se crisis in civil courts is a more hopeful and fluid situation, as courts slowly adjust to the reality that pro se litigants are a permanent and growing feature. Nevertheless, many courts remain uninterested in pro se reform, despite the many challenges unrepresented litigants face. Why?
The presence of lawyers greases the gears of the complex civil-justice system. Anyone who tries to proceed pro se is encouraged to get counsel. Clerks’ offices refuse to offer legal advice; only lawyers can do so. Judges do not like to take the time to explain the rules of evidence or the order of the proof, or how to properly handle an opening or a closing statement; you need a lawyer to do that for you. Even something as simple as admitting a document into evidence will frequently be too complex for a typical pro se litigant. Throughout the process, the pro se litigant is told repeatedly to hire a lawyer. All a potential client has to do is sit in the gallery of a traditional American courtroom and watch five minutes of a confused and struggling pro se litigant before he will decide to spend the money to hire a lawyer.
Not only must a litigant hire a lawyer to navigate the complexity, but it really matters whether the lawyer is good or bad. And of course, quality alone is not enough without some measure of quantity. In short, the nature of U.S. courts encourages not just hiring a lawyer, but hiring the very best lawyer one can afford for enough time to tip the scales to victory.
Judges are also hesitant to change how courts operate. Virtually all American judges are former lawyers. They learned the “right” way to proceed in civil court as lawyers. They learned proper judicial behavior in cases where at least one party was represented.
It is also much easier logistically and emotionally for judges to proceed as detached, disinterested, neutral arbiters between two lawyered parties. The lawyers do the work and the judge shepherds the case along. Embracing the reality of pro se courts requires a whole different attitude and a much more involved judiciary. This requires more work and a fundamental shift in the judicial role that makes some judges uncomfortable.
As an example, consider how often judges come to legislatures asking for more funding for the poor in civil court. Frequently, these judges tell horror stories of having to sit on their hands on the bench as injustices are perpetrated against overmatched, unrepresented parties. Yet the State already pays someone with a law degree to sit in court and possibly address these issues: the judge himself. If a tenant is facing an eviction and the landlord has failed to provide the proper statutory notice but the unrepresented tenant does not know, the judge is not required to turn a blind eye. American judges have remarkable leeway in how they run their courts, so any judge could ask the landlord about notice in any case. The decision to favor neutrality over judicial involvement, and then to testify later to a legislature about the miscarriage of justice, shows how deeply entrenched the detached-arbiter paradigm is.
There are, of course, many advantages to the detached-arbiter approach. In the common-law system, there are significant dangers that judges may favor some litigants over others or become too involved in their cases. Nevertheless, the balance of the equities shifts significantly if one or both parties lack a lawyer. In those circumstances, judicial detachment is often less fair than judicial involvement.
Likewise, clerks’ offices often are uninterested in wholesale change. Besides the judge, the other obvious source of assistance to pro se litigants is a court clerk. The clerks often know at least as much as the judges about the law and procedure of any particular court. Nevertheless, they rarely want to explain laws and procedures to unrepresented parties.
Clerks also have legitimate fears about offering legal advice. They hardly wish to be blamed if a litigant misunderstands their advice or loses. Questions from unrepresented parties often start off simple (“Where and when do I need to file these papers?”) and quickly grow complex.
Nevertheless, the pro se crisis has grown so bad that many courts are pushing through reforms that make it easier to proceed without a lawyer, discomfiting judges and clerks alike. As Part II describes, some of the reforms are technology driven, some are attitudinal, and some seek to replace court time with mediation or other forms of dispute resolution.
The progress on these fronts, and the comparative stall in criminal courts, tells us much about the politics on the civil side. Judges do not like to deal with pro se cases, and they do not like to step outside of their comfort zone as neutral intermediaries between two represented parties. Nor do judges like to see injustice recur in front of them, as inevitably happens where one side is regularly represented and the other is not. Thus, courts have started to bend on their first preference and to accommodate reality. As a political matter, it has also undoubtedly helped that middle- and even upper-middle-class people now regularly find themselves in civil court without a lawyer. A majority of state trial judges face some kind of election, and many pro se litigants are now likely voters.
Lawyers have not been silent, however. For example, the Tennessee Supreme Court recently led a statewide effort to address a growing crisis for poor people seeking a divorce.19 Many of the more aggressive reforms, notably form pleadings designed for more complicated pro se divorces, were non-starters. The divorce bar would doubtless block any changes that lessened the middle class’s need to hire their services. Nevertheless, as Part II describes, the overall trend is positive, offering hope of a third way of addressing our access-to-justice problems.