LAW FEBRUARY 3, 2014
Maintain and refine, maintain and refine. That’s how progressives talk about the welfare state these days. After nearly a century of expanding government with programs like Social Security, Medicaid, and food stamps, suddenly the best the left can come up with are relative stutter-steps like universal pre-K. Liberal Democrats all but concede that Obamacare marked the end of their activist ambitions. Hereafter, we will all take vigorous walks and watch prestige dramas on HBO.
But there’s still at least one major social-welfare project the left must see through before anyone considers its mission accomplished. The issue is the vast injustice that arises from the way the law is applied to different classes of citizens.
Anyone who has ever picked up a tabloid knows full well how the 1 percent flouts the laws that bind the rest of us. We still collectively stew over the world’s William Kennedy Smiths (acquitted on rape charges in the early ’90s) and Lizzie Grubmans (37 short days in jail after speeding her SUV into a crowd). And each passing year only brings fresh affronts. In 2010, there was Martin Erzinger, a Colorado money manager who maimed a cyclist in a hit-and-run. Erzinger escaped felony charges by arguing that the smell of his new Mercedes-Benz had aggravated his sleep apnea, which briefly knocked him out. In 2011, William Bryan Jennings, a Wall Street bond executive, stabbed his cab driver with a two-and-a-half-inch blade over an “exorbitant” fare and somehow got the charges dropped. It’s hard to imagine anyone without a trust fund or a hedge fund or a bond fund experiencing such legal good fortune.
This maxim is illustrated perfectly by the cases of two notorious Fort Worth teenagers, who trailed five dead bodies behind them. One night in 2004, 16-year-old Eric Bradlee Miller got drunk on a bottle of vodka, stole a pickup truck at a convenience store, then plowed into a car, killing the driver. Almost ten years later, Ethan Couch, also 16, packed several friends into his father’s pickup, stole two cases of beer from a Walmart, and proceeded to scream down a local thoroughfare until he collided with a disabled vehicle, killing its driver and three passersby.
Miller’s grandfather, with whom he lived, had wanted to hire a private lawyer but couldn’t afford the expense, and so the court appointed one instead. The lawyer advised Miller to plead not guilty and take the case to trial, where he was convicted of murder and handed a 20-year sentence.
Couch’s parents hired two prominent local defense attorneys who advised him to plead guilty and wallow in contrition before the judge.1 Most famously, they enlisted a psychologist to testify that Couch suffered from an obscure malady known as “affluenza,” in which wealthy parents render their children blameless by failing to discipline them. Prosecutors had asked for 20 years; the judge—the same one who sentenced Miller—set Couch free. The only catch was that the teenager would have to spend part of his probation in a California rehab facility with a half-million-dollar annual tab. The judge did not explain why a lack of impulse control excuses the wealthy but not the poor.
There are similar inequities in the realm of civil litigation, of course. Pharmaceutical companies and cigarette makers spend hundreds of millions each year beating back billions in legal claims, while the rate at which most working stiffs win judgments is appallingly low.2 In a typical year, a mere 14 percent of the thousands of miners who seek black-lung claims are successful. Predictably, the very poor fare worst of all in civil cases. They struggle to land legal representation of any kind, and, if they do, their lawyers tend to be massively overworked. A 2009 study by the federal government’s Legal Services Corporation (LSC), which makes grants to local aid groups, found that each legal-aid attorney serves an average of 6,415 poor people, versus an average of 429 people for private lawyers serving the non-poor.
Most of the proposals for remedying these problems amount to beefing up funding in some form or another. For example, a large body of research shows that full-time public defenders often get decent results for their clients; the problem is that there aren’t enough of them. That’s why reformers have urged increased spending to hire more public defenders and lighten individual caseloads. A federal judge in Washington state recently ordered two cities to take such action.
The extra money would certainly help. But even if legislators were to increase funding for legal aid, it would amount to a half-measure at best. We would still have the Ethan Couch problem: rich people who can buy far more justice than the average citizen thanks to nearly unlimited means. The only way to bring about the ideal of equal protection under the law is to boost spending on lawyers for the poor and middle class, and to prevent the affluent from spending freely. We must, in effect, socialize the legal profession.
I know it sounds crazy. We work up a righteous bile any time some entitled lowlife avoids prison, but we believe there’s something fundamentally American about hiring the best defense our money can buy. As much as it may run counter to our interests, we’ve bought into the idea that legal rights are luxury goods—“cheapened when everybody has them,” as the UCLA law professor Richard Abel puts it.3
But, as it happens, Western countries have been grappling with the issue of fair and just lawyering since at least the beginning of the industrial age. That’s when it dawned on our elites that unequal access to legal services was the weak underbelly of a capitalist system: Any country that only makes justice available to the affluent might not be stable and peaceful for long.
Businessmen began funding legal-aid societies across U.S. cities in the late nineteenth century. The impulse behind this wasn’t so much altruism as enlightened self-interest—sometimes without the enlightenment. The aid attorneys took on society’s shadier characters, like loan sharks and slumlords, but they rarely threatened their patrons’ bottom lines. For example, aid lawyers generally refused to help clients declare bankruptcy, advising them instead on how to scrimp and save to pay off creditors. The system bought elites some social peace while doing some actual good, but the justice it doled out was small-bore.
During the early twentieth century, Western liberals became frustrated with the limits of private philanthropy and began agitating for the modern welfare state, which many believed should include government-funded legal services. Initially, the prospect of “socialized law” terrified the rich and powerful, who foresaw an epidemic of frivolous lawsuits. In 1928, a British parliamentary commission, studying whether to make legal services available to everyone covered by the national health insurance program, concluded that, “It is manifestly in the interests of a state that its citizens be healthy, not that they should be litigious.”
By the 1940s, however, the idea of a government-run legal system was gaining currency. The United Kingdom became the first country to enact a socialized law scheme, providing divorce lawyers for soldiers whose marriages were crumbling during World War II. A few years later, in 1949, the Brits adopted a far more ambitious program, making 80 percent of people eligible for free or subsidized legal services. If a British citizen felt cheated by an employer or a landlord or an insurance company, she could choose a private lawyer who would in turn bill the state. “Previously, legal advice had aimed to discourage potential litigants,” writes Abel. “Now it sought to place everyone on a plane of equality before the law.” The Netherlands took a similar plunge in 1957, followed by Canada, France, Sweden, Finland, and Australia.
Martin Erzinger escaped felony charges by arguing that the smell of his new Mercedes-Benz had aggravated his sleep apnea, which briefly knocked him out.
For their part, most American lawyers were unmoved by these developments. It fell to a handful of reformers to make the case that expanding private aid was the only way to preempt “socialized law.” In a 1945 journal article, John Bradway, the head of Duke University’s legal-aid clinic, allowed that while there was nothing fundamentally unfair about “the existing order,” the media and popular culture were propagating the slightly daft idea that only the rich got justice in the United States. “Mental pictures are stubborn facts to be dealt with at our peril,” he wrote to his fellow lawyers. “Through legal aid service, the bar can make more friends at less expense than in any other way.”
In the mid-1960s, Washington finally stepped in to fund legal aid in this country, culminating with a new independent agency—the LSC—in 1974. The previously skeptical American Bar Association (ABA), led at the outset by future Supreme Court Justice Lewis Powell, had finally come around to Bradway’s view. It supported the new agency’s mission of helping those “otherwise unable to afford adequate legal counsel” by doling out grants to local aid groups, many of which the bar association already had a hand in. (Congress also funded a British-style “judicare” component—essentially Medicare for lawyers—as a small portion of the overall spending.) What few appreciated is how far even this mildly progressive vision left the country from anything approximating justice.
The problem arises from words like “adequate.” In reality, the more money one side has to spend in a legal proceeding, the more legal horsepower it will acquire, and the more likely it is to win. It’s no accident, after all, that big law firms deploy dozens of lawyers on important cases, some of whom comb through millions of pages of documents in search of exculpatory or incriminating evidence, others of whom spend months in law libraries cooking up exotic legal theories. Former Enron CEO Jeffrey Skilling, convicted of helping to mastermind one of the most brazen corporate frauds of all time, managed to get his sentence roughly halved from its original 24 years after his legal team, on which he’d spent more than $65 million, unearthed a flaw in the statute the government used to convict him.4
Suffice it to say, this is not the kind of sleuthing the man on the street can afford, and it renders useless the idea of “adequate” legal counsel. If, as in the cases of Eric Bradlee Miller and Ethan Couch, one’s adversary is the state, then letting Couch far outspend Miller in their respective defenses means letting Couch buy himself more justice, even if we could plausibly call Miller’s resources sufficient. And if, as in the case of the families of Couch’s victims, who have vowed to bring civil claims against him, the adversary is another citizen, then justice is basically zero sum.5 The fact that Couch can far outspend the plaintiffs means more justice for him and less for his opponents—again, even if the opponents’ resources meet some definition of sufficient.6 Or to put it in terms the other end of the 99 percent might appreciate: One of the fastest-growing businesses at big law firms these days is a practice known as “white-collar criminal defense,” in which former prosecutors and Security and Exchange Commission lawyers are rented out to corporate executives at $1,000 per hour. If you happen to be a junior analyst at Goldman Sachs—somewhat affluent but hardly wealthy—who gets indicted for insider-trading, there’s no way you could afford such high-class talent, and certainly not a team of world-beaters. But why shouldn’t you have the same quality defense that Goldman CEO Lloyd Blankfein would insist on?7
Clearly you should. And since there isn’t enough money in the country to allow all of us to spend as much on ourselves as Lloyd Blankfein would—to say nothing of the mega-rich like Bill Gates or Warren Buffett—then we have no alternative: We must limit what Blankfein and Buffett can spend.
The idea would be roughly as follows: in criminal cases, we decide what the accused should be able to spend to defend themselves against a given charge—securities fraud, grand theft, manslaughter, etc. No one can spend more, even if she has the money, and those who can’t afford the limit would receive a subsidy for the full amount beyond what they would have spent on their own (say, beyond a certain percentage of their annual salary or net worth). In civil cases, we decide what the plaintiff should be able to spend to pursue an award of a particular amount, or to pursue a particular kind of claim, and what the defendant should be able to spend in response.8 The same subsidies would apply.
Working out the particular amounts would mostly be an empirical question—Big Data can help us figure out what it costs to put together a competent legal team from case to case. But it would no doubt be a messy process that required constant refining and lots of humility. (Bands of permissible spending would probably work better in practice than fixed sums.) Still, what’s important isn’t so much that we get the amounts precisely right from the get-go. It’s not even clear that there’s such a thing as “precisely right” in some abstract sense. What’s important is that we take a critical first step toward making legal rights more equal. In any case, the beauty of the arrangement is that, with the rich and well-connected relying on similar legal resources as the poor and dispossessed, you can bet that any overly strict spending cap will be loosened (and the subsidies raised) soon enough.
Critics will surely dismiss this approach as illiberal. But, in fact, we already limit spending in parts of the legal system in order to put adversaries on equal footing. Small-claims courts prohibit defendants from hiring lawyers so that plaintiffs get a fair shot at representing themselves.
More to the point, ensuring that no citizen can significantly outspend her adversary is actually the highest realization of liberalism. The average liberal, myself included, believes government should provide everyone with a minimum level of essential services like health care or education. We liberals would prefer that this minimum bar be quite high, but we have no problem with the wealthy buying more health care or fancier schooling. If Bill Gates spends millions of dollars on medical treatment or private schools for his kids, it probably makes him a bit healthier than I am and his kids a bit better educated than mine. Still, the act of spending this money doesn’t make me less healthy or my kids less educated. It has no bearing either way.
But when Bill Gates spends hundreds or thousands of times more than I could to defend himself against a criminal indictment, the very act of doing so actually diminishes my status as a citizen. In a democracy, what makes people equal before the state isn’t that everyone has adequate procedural rights. It’s that everyone has the exact same procedural rights. It must be that, in the eyes of the law, there is no difference between rich and poor. If the rich have more rights—if they have fuller status as citizens—then by definition everyone else has fewer rights and lesser status.
The proper analogy isn’t health care or education, but voting. If Bill Gates got three votes for every one I did, it wouldn’t just empower him. It would disempower me. Of course, many will say that we tolerate disparities of this sort all the time. Gates doesn’t personally get more votes than I do, but he can drown out anyone he cares to by spending his money on issue advertising or political contributions. At which point, it’s worth noting that most liberals think this is outrageous. They want to stop it.
In fact, because legal rights arguably trump political rights, equalizing access to lawyers is potentially far more important than campaign-finance restrictions. Political rights, like voting and donating to politicians, are about who we hire to make and enforce the rules we live by. Legal rights are the rules themselves. You could lose all political rights and still, in principle, live a decent, contented life as long as you had some basic legal rights (though I don’t recommend it). If you lost your legal rights—if, say, you could be thrown in jail at any moment for no reason, or if fellow citizens could beat you and steal from you with impunity—it would be little comfort that you could vote in the upcoming midterms.9
Ultimately, the far more compelling critique against radical judicare is the practical one. Set aside the political difficulty of enacting the program, which, to massively understate the point, isn’t trivial. Even if we were able to pull it off, how could the government possibly police the arrangement? Obviously it couldn’t. You can prevent the rich from hiring lawyers to represent them in an official legal capacity. But you can’t prevent them from hiring people with legal knowledge who simply offer informal advice, or from consulting with lawyer-friends. And that’s before you consider that favorable treatment from prosecutors and the courts is often a function of social status and political connections rather than spending per se. It was, after all, the district attorney in the sleep-apnea case who declined to bring a felony indictment, matter-of-factly explaining that “[f]elony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession.”10 There is something to be said for the basic Marxist critique of the law—that the source of injustice isn’t the way we adjudicate disputes, but the underlying imbalances of power between rich and poor.
To which the proper response is to invoke liberalism again. The liberal accepts that there will be injustice and inequality in the world—that there will be rich and poor, powerful and powerless. She even accepts that, in her attempt to bring about justice, she will fall far short of the ideal. Wall Street will invariably find a way to make reckless trades; energy companies will inevitably contaminate the air and water; the health insurance industry will deny coverage to deserving patients; the wealthy of all stripes will tilt the outcome of elections. But, in the end, the liberal still believes you have to try regulating behavior. Just because you can’t make the world a perfectly fair place doesn’t mean you can’t make it fairer.
Noam Scheiber is a senior editor at The New Republic.