Magna Carta, a source of influence for law and justice around the world for nearly eight centuries, is the ancestor of both the British and American legal systems. In 1957, the American Bar Association recognized the “Great Charter’s” importance by erecting a memorial at its founding site in Runnymede. We look forward to the upcoming 800th anniversary celebrations in both our countries.
The great virtue of Magna Carta is its focus on the rule of law. The rule of law demands that we ensure justice, yet we still struggle to make accessibility to the courts a reality for all.
As President of the ABA, I serve as leader of the largest volunteer professional organization for American and international lawyers. One of the ABA’s key goals is to promote the rule of law by, among other things, improving legal aid for the indigent, securing adequate funding for court operations, encouraging sensible immigration reform and advancing the rights of all U.S. citizens to have their votes count.
Too few Americans can afford legal representation in civil matters. In 2011, the World Justice Project ranked the United States below 66 other countries for access to and affordability of justice. The U.S. was lower than Kyrgyzstan, Iran, Indonesia and El Salvador.
While legal assistance is unaffordable for many, the U.S. has young lawyers who worked hard to earn their law degrees and pass the bar exam, but who face a difficult job market with increasingly limited job opportunities. Too many new lawyers are unemployed or underemployed, while legal service providers for the poor struggle to keep up with those desperate for legal assistance.
In response, the ABA recently created the Legal Access Job Corps Task Force. Our experts in legal education, legal aid and legal-service delivery are exploring possibilities to enable new lawyers to hone their skills, gain valuable experience, make a difference in people’s lives and help us get closer to a truly accessible legal system. They are looking at a range of programs now in place — from rural outreach programs to nonprofit fellowships — that help young lawyers meet the legal needs of the underserved.
We can bridge the gap between a lack of legal services and the needs of young lawyers. For example, when the State Bar of South Dakota and the South Dakota Legislature identified a lack of legal services in their rural state, they invested in young lawyers. These new lawyers moved to the area and assisted South Dakota residents with their legal issues.
The ABA is also focused on restoring critical funding for the U.S. justice system, which has been drastically reduced by government efforts to cut spending. After a harsh economic recession, the urge to lower debt is understandable. However, the U.S. has a crisis threatening the promise of equal justice under law in its courts. Reducing local, state and federal court budgets is simply not an effective way to cut government spending. Anemic court budgets are irresponsible fiscal policy that endangers social justice and judicial effectiveness.
Active courts are an important ingredient for a fully functioning society. Businesses need to resolve business disputes. Families need to determine custody matters. Bankruptcy cases need to be processed. Cuts to federal defender services jeopardize the right to counsel of many indigent criminal defendants. In a U.S. Senate hearing last summer, Sen. Chris Coons of Delaware noted that in his state, courts have had to postpone criminal proceedings and furlough public defenders — not uncommon across many U.S. jurisdictions. As a result, many criminal defendants are in pretrial incarceration longer, at a significant cost to American taxpayers.
High-stakes cases are not immune to budget shortfalls. The criminal trial of an accused al-Qaida spokesman — the son-in-law of Osama bin Laden — was postponed because of a mandatory five-week furlough of federal defense lawyers in New York.
An ABA task force will continue to work with state bar associations and other partners to encourage legislatures to make more funding available. The ABA also intends to provide best practice resources and other tools to help guide the restructuring of court services to make them more capable to withstand the demand they face.
Just as we cannot ignore the immediate crisis of court underfunding that limits access to justice, the American legal profession cannot ignore immigrants who need legal assistance regardless of their residency status. In our current system, a child can be brought before a judge, asked legal questions and face deportation without a lawyer or guardian to help him or her. Beyond the goal of providing equal justice under the law for all who appear before the courts, the cost of having hundreds of thousands of immigrants represent themselves is costly and inefficient. More than 80 percent of people detained have no legal representation, and a 2011 New York Immigrant Representation Study showed that an individual in New York immigration courts was five times more likely to win relief with a lawyer than without. The ABA is committed to finding ways to increase pro bono representation for undocumented immigrants who need legal assistance, including deploying new participants of the Legal Access Job Corps to help.
Reform is needed on multiple levels, and the ABA is committed to working with policymakers in the U.S. Congress to pass bipartisan, comprehensive immigration reform so that common-sense changes can be implemented.
Another important commitment of the ABA to improve democracy and the rule of law is to ensure that all U.S. elections are fair, open and accessible to all registered voters.
The U.S. Supreme Court recently struck down a key provision in the Voting Rights Act, created in 1965 to prevent voter discrimination. Between 1982 and 2006 (when the U.S. Congress overwhelmingly renewed the law), this provision halted more than 1,000 proposed discriminatory voting changes in jurisdictions with a history of racial discrimination.
The need for advocacy and action is as acute as ever. As recounted in a recent report of the ABA Standing Committee on Election Law, long lines at the polls were common during the 2012 U.S. Presidential election. Some voters waited more than two hours to cast a ballot. According to the report, the main factors leading to voting wait times were poor planning, lack of alternative voting options, inadequate supply of voting machines and technology malfunctions. Also cited were long and extensive ballots, sudden changes to voting laws, lapses in poll worker training and misinformed voters.
Every time voters participate in free and fair elections, they reinforce the legitimacy of the rule of law. This is why the ABA encourages lawyers to ensure that the nation’s election laws and practices permit the broadest, least restrictive access to the ballot box. Every vote matters, and every vote should be counted efficiently and easily.
The ABA has urged states, localities and territories to enact appropriate steps to fix problems, including long lines, voters being turned away and other barriers to the voting booth that plague the electoral process. This year the ABA will take a serious look at the improvements that are feasible in polling places across the country to make the process better for voters as soon as possible. The right to vote is essential to preserving democracy and the sanctity of publicly elected positions.
The legal profession is a crucial component of American democracy and a free society. America’s lawyers are officers of the court who guide members of society to an understanding of their rights under the law. Enforcing the rule of law is a central challenge the United States faces as a country. As barristers, I know that you share the same commitment to the rule of law in the U.K. Together, we can improve the world for all its citizens.
James R. Silkenat is the President of the American Bar Association