The Price of Rights

With all that is going on in our state and our nation, indeed the world in the name of “access to justice” it is appropriate to pause and reflect on what that should mean whether it seems that we have time to do so or not.

In Maryland, we have DeWolfe v. Richmond and its legislative progeny addressing the right to counsel at a criminal defendant’s first appearance before a judicial officer who can deprive the accused of his liberty (District Court Commissioner or Judge).  That subject is currently consuming a huge block of time and energy in all three branches of our state government.

A lot of that time is being devoted to calculating the costs in taxpayer dollars of various business models for the operation of the Judiciary, the Office of The Public Defender and The States Attorneys’ Offices in implementing that constitutional right which was declared without a cost- benefit analysis preceding or accompanying it.  Add to that the potential cost in time and money of the Private Bar and you have at least an informed estimate of the cost of implementing this heretofore undeclared constitutional right and responsibility.

Maryland is also looking at what has been termed “Civil Gideon” after the famous Supreme Court case of Gideon v. Wainwright in which the federal constitutional right to counsel of any person accused of a crime and whose liberty is at risk was proclaimed in the United States.  “Civil Gideon” in Maryland would depending in its final form establish by either legislation or court opinion a state constitutional and or statutory right to counsel in some or all civil cases.  Hopefully that will be considered only after a recognition of the costs of doing so and consideration of the way to pay for those costs.  The need to do so at least contemporaneously if not in advance is the lesson to be learned from the current tension and machinations including finger-pointing going back and forth between all three branches of government particularly while the General Assembly is in session.

The reason that lesson is so important at this time is that the historical context for our state’s focus on “access to justice” is a dramatic downturn in the level of confidence of the people (governed) in the institutions of democratic governance and the “leaders” elected or appointed to make those institutions work at all levels. That lack of confidence is certainly evident at the national level where it manifests itself in low levels of approval for the President of the United States which are at least higher than the record low levels of confidence in the U.S. Congress.   This phenomenon is unfortunately paralleled in other “mature western democracies” particularly the British model.   It is also manifesting itself in our state.

The impact of this lack of trust and confidence in the institutions and leaders of government on the ability of those institutions to provide greater “access to justice” is direct.  If the independence of the institutions of government whose primary responsibility is to provide access to justice, i.e. the judiciary is not sufficiently respected and funded accordingly by the more political executive and legislative branches of government then even the existing level of access to justice will not be maintained.  Conversely if the judiciary does not understand and respect the role of the more political branches of government in a representative democracy to restrain spending to a level which is acceptable to an economically and politically diverse as well as a sometimes irrational citizenry and electorate, then the judiciary will lose the ability to have confidence that the rights and responsibilities which they adjudicate will be carried out.

In turn, the people will lose what’s left of their expectation, until recently unshakeable, that their rights will be protected by institutions of government that work and leaders who are both trustworthy and competent.

What’s going on in Maryland at the moment is illustrative.  A majority of the judges then sitting in the highest court in the state articulated and/or arguably extended by interpretation the state constitutional right to have counsel for persons accused of a crime, whose liberty is at risk at his or her first appearance before a judicial officer.  They did so without any public consideration or explanation of the cost.  The elected an appointed leaders of the affected agencies of the executive and legislative branches of government then predictably reacted with a combination of fiscal reality-based shock, chagrin, and in some cases anger at what they perceived as a ruling, unique among all of the states in the union, which extended in their view impractically a right to a politically unpopular and under franchised class of people  which could cost $30 to $35 million dollars.  Elected representatives naturally resisted  coming up with that amount of money to extend a right they hadn’t known about or thought about until last fall particularly in an election year.

The process which has unfolded since and is ongoing as this is written has not been orderly or pretty.  It has consisted of speeches, ad hoc “working groups,” task forces, etc. producing legislation that ranges from a “So There!” message to serious attempts to address the immediate and long term issue of how to implement with the fiscal resources available the newly declared /expanded right to counsel for persons accused of a crime.

The process is not over and will not end when the Maryland General Assembly bids “Sine Die.”  It will carry on in the Conference Rooms and Courtrooms of the trial and appellate courts in this state, in the Rules Committee and in the Conference Rooms of the Legislative and the Executive Branches of government before and after the Primary Election this Summer and the General Election in the Fall.  Hopefully those who remain or emerge in the leadership of all three branches of government will recognize the continuing validity and wisdom of what Plato thought would be the greatest challenge to sustaining a democracy – that citizens would “live from day to day, indulging the pleasure of the moment.”

In order to avoid that we should expect that the leaders of all three branches of government pay constant attention to what the editors of a special essay in “The Economist” magazine entitled “What’s Gone Wrong with Democracy” refer to as “the architecture of our political system.”  They should pay attention to these institutions of government with enough insight to grasp the effects of globalization, the digital revolution and other developing technologies on both the reality and potential increased access to justice in both our civil and criminal justice systems at a cost we can afford.  That of necessity will require an organized critical examination of some of our most cherished, but now outdated governmental institutions and practices.  It can’t start soon enough.