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Should There Be a Right To a Free Attorney in Civil Cases?

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The American Bar Association has filed a brief in a New Hampshire court in favor of state funding of appointed counsel in certain civil cases.

As you may know, you have a constitutional right to have a lawyer appointed to defend you in most criminal cases, if you can’t afford to hire a lawyer. This makes perfect sense. After all, in a criminal case, a whole lot can be at stake. Usually, losing a criminal case means, at the very least, losing one’s freedom for a fairly long period of time. And, in the most extreme cases, the defendant’s life could be at stake. So, if we want to believe that we live in a free and fair society, we have to do absolutely everything we can to ensure that all criminal defendants get a fair trial. One essential element of that is a defense by a competent attorney, whether the defendant can afford it or not.

However, the law generally does not recognize a constitutional right to a free court-appointed lawyer in a civil lawsuit, whether you’re the plaintiff or the defendant. To some people, this doesn’t make sense, because in many civil cases, just as much can be at stake as in a criminal case.

In a landlord-tenant lawsuit, a loss may result in a family being evicted from their apartment, and thrown out onto the street. In a lawsuit over eligibility for disability benefits, the applicant’s ability to obtain basic healthcare may be at stake. And, if parents are accused of abusing or neglecting their children, the state may initiate a civil action to have the children removed from their home (this issue is completely separate from the parents’ criminal liability for the alleged abuse). Generally, the law says that you have no right to a court-appointed attorney in these cases, even if you can’t afford one, and everything is at stake.

Many individuals and organizations, however, are seeking to change that.  The American Bar Association has advocated for state and federal authorities to provide attorneys in adversarial legal actions where “basic human needs” are at stake.

This is sometimes called a “Civil Gideon” rule, which refers to the Supreme Court case of Gideon v. Wainwright, which first recognized the constitutional right to court-appointed counsel for defendants in criminal cases.

California has led the way in this push. Back in 2009, the state legislature passed a law which closely mirrors the policy advocated by the ABA. It authorizes funding for court-appointed attorneys to indigent parties in civil cases that involve basic human needs, such as eviction and foreclosure cases, child custody cases, and cases involving eligibility for healthcare benefits such as Medicare or Medicaid. Anyone whose income is 200% above the poverty line or lower is eligible for court-appointed attorneys in these cases. For a family of four, this is an annual income of a little over $44,000.

Personally, I think that this is a sound policy, at least in theory. With the budgets of many states (notably California) being strained to the breaking point, adding yet another funding mandate is a tough pill to swallow for many Californians.

Also, some (mostly) conservative commentators have noted that such a rule will make it more difficult and expensive for landlords to carry out legitimate and justified evictions, which could end up raising rents on everybody, including the low-income renters that this law is intended to protect.

That’s probably the most compelling argument against this law. However, I think the pros of a rule like this most definitely outweigh the cons. It’s pretty hard to argue that a parent who is facing the prospect of losing custody of their children shouldn’t have a court-appointed lawyer in such cases. And if a severely disabled individual is denied SSDI benefits, it’s hard to argue with a straight face that they shouldn’t be able to pursue every legal avenue available to them to appeal this decision, as effectively as possible.

Obviously, such a system can never be perfect, and many practical issues come up, particularly having to do with its implementation. For example, should there be a dedicated state organization staffed by full-time lawyers, tasked with handling cases like these (like the office of the public defender)? Or should all California lawyers be required to participate in it? There are advantages and disadvantage to both approaches.

Another possible sticking point is the question of where to draw the line on what constitutes a basic human need. It’s likely that the courts will become involved in clarifying this language. After all, it would be prohibitively expensive to provide indigent parties with a lawyer in every civil case. And that was never the intent of this law.

In any case, I think the ABA has made the right decision in calling on state and federal governments to provide court-appointed lawyers in some civil cases. Given the fact that just as much can be at stake as in criminal cases, it’s really hard to argue that the same interests of justice do not apply to some civil matters.

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Thanks to the Internet, We Are All Now Criminals

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How many contracts did you enter into this year? Can you count off the top of your head? If you signed a car purchase agreement, a lease, or a mortgage, I’m sure you remember those. Maybe you joined some type of club or organization, or started a new job, which required you to enter into formal agreements with another party.

But if you’re a computer user, the contracts whose terms you bothered to learn, or even remember entering, are almost certainly a small fraction of the total number of legally-binding agreements you entered.

Here’s a better question: how many times did you click “I agree” when visiting a website or installing a piece of software? I’m going to guess it’s more than you can count. And how many times did you read the entire agreement you purportedly just agreed to? If you’re anything like me, and the vast majority of people, you probably read none of them. After all, if you did, it’s what you’d spend most of your life doing.

An example: the simple act of buying music, which once upon a time involved walking into a store, picking the CD you want, and exchanging it for money with the clerk behind the counter. You might have gone through the whole process without saying a word, let alone signing a contract (though, technically, you’re still entering one, it just happens that the whole thing is performed as quickly as it’s formed). The fact is, we probably enter into more formal legal agreements in a year than our grandparents did in their lifetimes.

A very interesting article in the Wall Street Journal talks about some of the issues associated with the fact that we enter hundreds of legal agreements each year without bothering to familiarize ourselves with their terms. And thanks to the Computer Fraud and Abuse Act, which makes it a crime to access any computer system without the authorization of the owner, and the expansive interpretation of that law that the Justice Department and federal courts have settled on, breaking any one of these agreements could, in theory, be a criminal act.

This happened a few years ago. You may remember the “MySpace suicide” case, in which a woman set up a fake MySpace account, posing as a teenage boy. She then befriended a teenage girl who her daughter considered to be an enemy. The girl fell in love with this fictional boy. The woman then revealed the whole thing to be a ruse. Tragically, the victim of this sick prank took her own life.

Because the state in which this occurred, as well as the federal government, had no laws against so-called “cyber-bullying” at the time, a clever federal prosecutor charged her with a violation of the Computer Fraud and Abuse Act. His argument was that setting up a fake account violated MySpace’s terms of service, and in accessing a website in violation of its terms, the woman was accessing a computer system “without authorization,” which amounted to a criminal violation of the CFAA.

She was actually convicted, though her conviction was later overturned on appeal.

Since then, there have been many other cases of people being charged with crimes after they accessed a work computer after being fired, set up fake Facebook accounts, and other things that most of us wouldn’t consider to be the stuff of criminal liability.

Now, most of the conduct that gave rise to these cases was bad, and the law shouldn’t completely ignore it, when it causes actual harm. But that’s why we have civil lawsuits. By criminalizing such a wide range of conduct, we’re actually trivializing crime.

I should also note that I’m not terribly worried that the FBI is going to start arresting married people who join dating sites (that’s against most dating sites’ terms of service), or teenagers who use Google (that site’s terms of service say that you can’t use it unless you’re of the legal age to enter a contract – 18 in most jurisdictions).

What I am worried about is that the CFAA might become a catch-all criminal statute for federal prosecutors to use when they don’t have any real evidence against a defendant, but they “just know” that the defendant did something wrong.

One of the many running themes of my blogging over the last couple years has been the need to avoid vague criminal statutes. Imagine if there were a law on the books which made a crime “punishable by whatever sentence the Court sees fit” to do “anything the government doesn’t like.”

Obviously, I’m not saying that this is likely to happen anytime soon, but with infinitely-elastic laws like the CFAA in existence, I’m not saying that it couldn’t ever happen, either.

For that reason, I agree with Orin Kerr of the Volokh Conspiracy, on his argument that the CFAA needs a serious re-work. Obviously, we want to punish legitimate crimes that can be committed through computers, like identity theft and espionage; but the CFAA, or another law altogether, could accomplish that goal while being much narrower in scope.

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Broke USPS Needs Its Bins Back, Giving Amnesty From Felony Charge

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You’ve a rebel for blatantly getting away with a federal crime for too long.  Need amnesty?  Well, if you currently possess a United States Postal Service plastic mail bin (which is a felony, punishable by up to 3 years in prison) now is the time to do so because you can return them free of prosecution.  Sure it’s a lame crime, but hey, a crime is a crime and you can always dress up the story later at the bar with car chases and shootouts.  Because we all know that the ladies dig a bad boy, oh and vampires, too, for some reason.

In any case, you heard right.  The increasingly cash-strapped USPS is currently looking for any way to cut expenses and increase its dwindling revenue streams.  So after years of pointlessly and ineffectively pursuing holders of its mail bins, the agency has announced a temporary period of amnesty starting from November 12 to November 26.  Perhaps it’s simply to spread some early Christmas cheer?  Or more likely it’s because USPS has lost $50 million worth of the bins, which run $4 a pop.  USPS has even gone the extra mile by directing soon-to-be-bin-less citizens towards retailers who sell comparable and/or better bins for $6.

Times must be really tough for the USPS.  Don’t people know that we have to do everything we can to keep it afloat less our society crumble into a post-apocalyptic wasteland.

Seriously though, this really is an interesting turn of events and it will be fascinating to see how it plays out, especially since there is an odd curve ball thrown into the mix of all this.  USPS is only offering amnesty for the return of its mail bins, but is also requesting that people return stolen mail pallets and crates.  The latter two are stolen particularly often as they serve as makeshift furniture for many a dorm room all over the nation.  The twist is that the USPS isn’t offering amnesty to those who return those last two items.  From a criminal theory research perspective, the USPS has inadvertently created a nationwide experiment on effective prosecution and decriminalization.

I know, it all might sound a little crazy, but before you jump to have me committed, take a moment to consider the elements of this predicament and how it relates to current criminal law practices.  Our current criminal justices system has long been one reliant on plea bargains to keep it from collapsing on itself.  This is because the sheer number of criminal defendants makes the notion of prosecuting each and every case impossible.

However, many legal theorists agree that one of the main reasons why there are so many crimes today is because there are too many obscure, harsh, and/or unnecessary criminal laws in existence.  In essence, these laws can make normative and/or less harmful behavior into violations that carry stiff punishments, and in turn force those who commit them into hiding while also increasing the cost and burden on law officials and prosecutors to put violators behind bars.

Now, in the case of USPS’s missing bins, aside from the convenience and utility they offer to customers who hold onto them, one of the main reasons why they aren’t returned is that those who do so after the proscribed return time may be worried about facing prosecution.  Thus they are faced with a rock-and-a-hard-place situation.  They can either return the bin and face potential prosecution, or they can keep the bin and hide their crime.  Either way, USPS doesn’t really benefit in the long run as the latter situation causes them to lose money from not getting their bins back, and the former situation still causes them to lose money since they must expend resources to pursue unnecessary prosecution efforts.

But we won’t know how effective this amnesty attempt will be for USPS’s bottom line until after the experiment is over and the data on it is released.  Though my bet is that the USPS will see a positive spike in returned bins while simultaneously seeing no change on returned pallets and crates.  People I believe, after all, are essentially honest and good.  And I think given the chance most will do the right thing when it’s convenient and safe, as idealistic as that all may sound.

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Criminal Court Trials Now Exceed The Number Of Civil Trials, Hell Freezes Over

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It’s definite now.  I think we finally have definitive proof that when 2012 comes rolling in, the world will end.

Seriously though, I thought I would never see the day where the amount of criminal cases going to trial would actually exceed the number of civil cases getting their day in court.  But apparently, according to the Wall Street Journal, that is what’s exactly happening in courts all over America today.  Who knew one of the Four Horsemen would come in the form of judicial equilibrium?

The report cites a number of reasons for the uptick in criminal court trials.  Some of them include an increase in prosecution of drug and immigration offenses, along with a general growth of new criminal laws carrying new penalties on both the state and federal level.  But interestingly enough, the article also cites the large number of judgeship vacancies on the federal bench as one of the reasons why less civil cases are getting their day in court.

This is definitely a surprise to me considering that, in my opinion anyway, being a judge is one of the cushiest jobs in the world.  The salary can easily be in the six figures, the hours of work are basically whenever the judge feels like coming in, and let’s not forget about the respect and prestige that comes with being a federal judge.  But it seems like all these factors isn’t enough to keep the bench stocked with judges since about 67 of the 677 district court judge positions remain empty.  Meanwhile, the amount of federal criminal cases has gone up over 70 percent since the last decade.  All of this ends up causing civil cases to be put on the backburner until the criminal docket across the country are resolved first.

The strange thing about the coverage of this new development is the negative spin it’s getting from the media.  The overriding consensus from all the reporting I’ve seen on the matter so far has been that it’s hurting both big business and the little men and women of the world from getting the justice they deserve.

Now while I agree that all citizens should have the right to have their issues resolve by the courts, for years criminal defendants have been getting the shaft when it came to being able to exercise their right to a jury trial.  I mean, there are entire Wikipedia pages dedicated to the problem.

Plea bargaining is the worst offender of them all.  In the short term, criminal defendants get a seemingly good deal.  Generally, in exchange for pleading guilty a defendant will be given no jail time, time-served, a reduced fine, and/or in some cases no prosecution at all (usually that last one comes in the form of a The Wire-esque quid pro quo).

But the problem with this system is that unless you’re rich or have some other equally rare blessing in life, copping a guilty plea and getting a conviction on your record is something that follows you for the rest of your life.  A conviction on your record is kind of like have an annoying sidekick always following you around and screwing up your job interview or licking his shoes clean while you’re at your boss’s wedding.  It’s not something that you want to have, and though you may be able to tolerate its wacky antics and schedule your life around it’s zaniness, it’s not something that you should have to do.

So I say, good for you criminal justice system.  You finally achieved a little more parity in how you decide to send our country’s citizens to the slammer.

But what do you guys out there think about all of this?  Do you think it’s fair that civil cases are being delayed in order to hear criminal trials first?

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Are More Sentencing Restrictions for Juveniles Coming?

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Less than a year and a half ago, the Supreme Court ruled that juveniles (people under 18) cannot be sentenced to life in prison without parole when convicted of any crime other than murder, holding that all juvenile convicts must at least be given a reasonable chance to be paroled, even if this does not actually result in parole.

Now, the Supreme Court is going to hear another case, this time asking whether or not minors who commit homicide can be sentenced to life without parole.

This is another in a long string of cases where the Supreme Court has placed new restrictions on sentencing, particularly of juvenile criminals. The basic idea is that young people are probably most likely to be rehabilitated, so it doesn’t make sense to deny them an opportunity to do so.

In my last post on this subject, I mentioned that I don’t want to see life without parole completely eliminated as a sentencing option, but was somewhat on the fence about whether it should be available for juveniles who commit murder. Over the last few months, my views have changed: I think that life without parole should not be available for criminal defendants who were juveniles when they committed their crimes, even if the crime is murder.

Again, I should emphasize that this does not guarantee that a juvenile offender sentenced to life (with a chance at parole) will be guaranteed release. Parole boards would, and should, be free to exercise their discretion to deny parole, if they believe that the offender represents a continuing threat to society. It simply means that juvenile offenders must, eventually, be given an opportunity to show that they’ve been rehabilitated. I don’t know what the minimum time before this opportunity arises should be, but it should be a point in the future that the offender is reasonably likely to live to see, such as 15 or 20 years.

Of course, this means that there is a real chance that some people who commit murders as juveniles will eventually be released. Obviously, the decision to grant parole should not be made lightly, and it should only be granted when the defendant can show that they’ve been rehabilitated. If such a rule were adopted, perhaps it would spur our criminal justice system to stop paying lip service to the idea of rehabilitation, and actually change the focus of the system to genuine rehabilitation of criminals.

After all, if all juvenile criminals are given a shot at eventual release, we’d want to make sure that they’re unlikely to re-offend after release. While it’s true that some criminals, even juveniles, are beyond rehabilitation, and need to be locked away forever, it’s also true that we could do a much better job of rehabilitating criminals than we currently do.

For example, Norway recently took a lot of flack when the American public got a view of their “posh” prisons that look more like college dorms than prison cells. Many people were upset that the worst criminals in the country are given very comfortable and seemingly-luxurious accommodations.

However, Norway has a recidivism (re-offending) rate that’s far lower than that in the United States.

It’s also worth noting that Norway has completely done away with the sentence of life without parole, while still having a procedure for ensuring that prisoners who remain dangerous are not released.

Such a system, which largely disregards punishment as one of the objectives of criminal justice, seems counter-intuitive. However, if the Supreme Court rules that life without parole cannot be applied to any juvenile offender, we will have to start seriously considering what should be done with this fact.

Do we just continue to use the parole system we currently have, and hope for the best, or do we take it as an opportunity to create a criminal justice system that makes released offenders as unlikely to re-offend as possible?