If America is going to go by the value of Equal Justice Under Law, then Equal Access Under Law needs to be part of that as well. Otherwise Equal Justice Under Law means nothing and it is really instead Affordable Justice Under Law. Meaning you get the justice that you can afford. So if you are wealthy and are charged with rape and there’s substantial evidence that you are guilty, you might get away with it because you can afford a great lawyer and legal team that can get evidence thrown out that perhaps was collected improperly.
But if you are a bus driver or a construction worker perhaps a teacher under the same charges and perhaps you are not poor, but with modest means who doesn’t have a hundred-thousand-dollars or more to spend on a great legal defense with the same evidence against you, you are probably getting convicted because you are stuck with the public defender who is underpaid and overworked who’s working five cases at the same time including yours. And would like to get your case out-of-the-way as soon as possible. Not because they don’t care about you, but because they have very limited resources with an unlimited amount of work.
I’m not looking to create a completely equal justice system. That doesn’t exist anywhere in the world unless you live in a country where the government controls and finances through taxes the legal services for everyone. And as long as we have an economic system where people are allowed to and able to make as much money as they can we are going to have some Americans who simply get better legal services because they can afford them, but we can create a legal system where everyone has access to justice regardless of their income level. Where everyone will get the legal services they need to be able to make their case. Especially if they are innocent, or have been harmed.
One way to do it would be to encourage and even require all private lawyers to do at least a certain amount of pro bono work for low-income defendants and clients who have a complaint to make against someone or an organization and want to see justice for it. We could do that by passing a law requiring lawyers to do this and through the tax system allow for them to write off the costs of their pro bono work.
Another way would be to set up a legal services finance or insurance system that we would all pay into and them collect that money when we need it for legal services. Similar to health insurance or property insurance.
Another way would be to fully fund public defender offices and the Legal Services Corporation. So they have the resources and staff to perform the legal services that private law firms can afford and are capable of providing.
All of these reforms would require a good deal of money, but is something that we can afford to do. And if not and this is not the case, but if it were true that we can’t afford to do this, then Equal Justice Under Law is worth no more than a plastic cup and we should change that to Affordable Justice Under Law instead.