Watching the idea we are a nation of laws unravel
San Francisco Daily Journal
December 8, 2014
By: Ara Jabagchourian
There has been a troubling trend developing for some time regarding perceptions of who the law serves in our society – and it cuts right down to socioeconomic lines. Rightly or wrongly, the media has portrayed the grand jury decisions not to indict the officers who killed Michael Brown in Ferguson and Eric Garner in Staten Island, and the outrage stemming from it, in a racial context.
For many who see these events in the media, questions are resurfacing as to the role of law in our society. These include whether there are privileged classes under the law, how level is the legal playing field for those without the financial resources, are the laws applied equally for rich and poor, for the racial majority versus minority, accountability of the decision-makers, selection of the decision-makers (e.g., judges, district attorneys, members of a grand jury), and are the laws themselves just.
Nonpublic hearings, such as grand jury proceedings and arbitrations, only bolster suspicions that those who make the decisions have no public accountability, at least to those who cannot afford political influence. It does not help that there are really no true lobby groups in Sacramento or Washington, D.C. for lower- and middle-class individuals.
As attorneys and judges, we sometimes get caught up in our respective roles and fail to look at the legal system from the perspective of an outsider. Public defenders are overloaded and cannot spend more than minutes per client prior to trial. Their offices do not have budgets equivalent to those of their district attorney counterparts. Public defender offices are often representing individuals who otherwise cannot pay the retainers sought by private criminal practitioners, who in theory can devote more time investigating cases. These issues alone should call into questions the true meaning of the Sixth Amendment’s right to counsel in criminal proceedings.
On the civil side, the balance of justice is also tilting away from lower-income individuals and small businesses. The impact of extreme budget cuts to the court system has made it much more difficult for folks to have their actions resolved. The longer cases drag on, the more difficult it is for attorneys working on a contingency basis (who typically represent individuals who cannot pay an attorney by the hour) to float many cases because of the outstanding costs. Caps on damages being placed on injury and malpractice claims across the country benefit insurance companies and other special interest at the expense of individuals and families. This prevents attorneys from taking these cases because they are not cost effective on a contingency basis. The U.S. Supreme Court’s push to systematically enforce adhesive consumer arbitration clauses disproportionately impacts consumers who do not have the bargaining power of transnational corporations. And let’s not delve too deep into funding by special interest groups in judicial campaigns to realize there is a serious problem.
In the recent book “Capital in the Twenty-First Century,” French economist Thomas Piketty looks at how economic inequality has universally grown in all major economies since at least the mid 1970’s. Wealth has become more concentrated and something that is visible here in California. As wealth concentrates, the power of corporate special interest and the funding of lobbying outfits become stronger and issues of facts and justice become steeped in special interest money.
To most, elections become meaningless. Choices on ballot (usually two) are viewed to be as critical as having to decide between Pepsi and Coke. The money it costs to put up people to run in elections who can create new laws, enforce laws and change the laws is out of reach of the working class. As they become more alienated from the political process, they become further alienated from the legal system. As that happens, the idea that we are a nation of laws unravels in the eyes of the general public.
Despite understanding that the plural of anecdote is not evidence, one personal experience haunts me to this day. Several years ago, during jury selection in a case in Fresno, I asked the panel whether anyone thought the civil justice system was unfair. One gentleman raised his hand and I asked him why. His answer was “those with the most money win.” To this day, that statement causes a slight pain in my gut and puts in question, at least in my mind, what we as attorneys are doing to preserve the integrity of the justice system in the eyes of the public. It further raises the issue of what I, as an attorney, can do to change not only the perception, but also to alter the reality if the perception is not an illusion.
I hope this is not treated as a public relations problem that must be corrected with the “right” message. This must be addressed as it goes to the core of the legal system and the legal profession. Each one of us attorneys must start seriously considering and addressing these fundamental issues, or the notion of “equal justice for all” will become merely words carved into fancy buildings to an increasing number of our fellow citizens.