Among the facts brightly if indirectly illuminated in Turner v. Rogers by the Supreme Court’s analysis of the relationship between the “right to counsel” and “alternative safeguards,” is that so little is known about the status of unrepresented persons in our state courts and about the assistance available to help them. So little is known about what is necessary to assure “fundamental fairness” in our justice system.
What we do know is that society has been asking legal services programs, indigent defense programs, and the courts to do more with less. Demand for their services is up (foreclosures, evictions, domestic violence disputes, commercial matters, criminal prosecutions, have increased) while revenue to finance their services is down (forcing layoffs of staff, reductions in court hours, even suspensions of civil jury trials).
In this environment, data and best practices are needed to drive the funding and policy debates, but we don’t know even such basic things as:
–the number of people unrepresented in civil proceedings, and the number unrepresented when the other side is represented or when the other side is an entity of government.
–the nature and scope of services available to people who are unrepresented and whether those services are effective.
–the number of people receiving criminal convictions (pleading “time served”) without having received the right to counsel due under Gideon.
–the numbers that would tell us other important things (such as whether people are receiving needed waivers of court fees or needed interpreters).
The stakes are too high to allow us to go forward without such information. Line-drawing that relies heavily on ideas about how things are supposed to work, as opposed to how they actually work, can impose real hardship. Safeguards that are less protective than representation by counsel may prove valuable, but should not be assumed into existence or presumed valuable.
At the National Center for Access to Justice at Cardozo Law School we are building partnerships with courts and communities to develop a Justice Index and Representation Index – new systems that can make such information readily available via the internet. Of course, work is needed to create capacity both to track the information and to present it. But it is important to do this. Establishing access to relevant data and best practices, comparable over time and across jurisdictions, will highlight areas for reform, help to educate the public about the important roles of the courts, legal services and indigent defense services in our society, and help to realize the promise of “fundamental fairness.”