A Call to Arms

In his biennial address on the state of the judiciary, the chief justice of the Texas Supreme Court remembers the Alamo.
Wed March 6, 2013 5:45 pm

"For those who can afford it, we have a top-notch legal system," said Wallace B. Jefferson, the chief justice of the Texas Supreme Court, on March 6th.

He was speaking in the state House of Representatives, to a joint session of the House and Senate. By law, the Texas legislature hears from the state's top judge during every regular session. Jefferson was appointed chief justice of the Texas Supreme Court in 2004, so it was his fifth "state of the judiciary" address, and perhaps his most ambitious.

This year's address raised some points that longtime watchers might have remembered from previous sessions. Jefferson has long been concerned with juvenile justice, for example, and he raised that issue again this year. "We are criminalizing our children for nonviolent offenses," he said, offering the startling statistic that the state issues some 300,000 tickets in public schools each year.

The chief justice was, however, more forceful than he has been in the past. In 2011 he said that he was "calling for action" (PDF). On Wednesday, he described his speech as "a call to arms." It was a slight shift, but a significant one. He had talked about juvenile justice, the politicization of the judiciary (another longtime concern), and the need for greater elder protection (an emerging issue, in his view).

But the bulk of his speech focused on what Jefferson described as systemic and persistent economic inequity in both the civil and criminal courts. For most Texans, he argued, access to justice is scattershot. Jefferson observed that last year marked the 50th anniversary of Gideon v. Wainwright , in which the (United States) Supreme Court ruled that all criminal defendants have the right to be represented by a lawyer. Without that, wrote Justice Hugo Black, it was "obvious" that the defendant wouldn't get the fair trial guaranteed by the Constitution. The Court's ruling was unanimous, and few Americans today would disagree.

Despite that, Jefferson said, many Texans are routinely denied access to justice, because the financial barriers to hiring a good lawyer are effectively insurmountable. Texas ranks 48th in the country in terms of per-capita funding for indigent defense, and only about 20 percent of people who meet the requirements for legal aid are able to get it. (Indeed, Texas didn't have any statewide provision for indigent defense until the 2001 passage of the Texas Fair Defense Act. Prior to that, counties were left to determine their own standards; in 1999, the Legislature passed a bill to change that, but George W. Bush, then the governor, vetoed it.)

"We must insist that criminal defendants have qualified counsel who are equipped with the time and resources to mount a meaningful defense," said Jefferson. Failing to do so has costs too. Over the the past 25 years, the chief justice noted, 117 Texans have been exonerated. In addition to the injustice the innocent experience in those cases, Jefferson suggested, this is a public safety issue: “Wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free.”

It's not only the poor, however, who have unequal access to justice in Texas. Jefferson referred to "a dark secret that plagues our justice system as a whole": middle-class people and small businesses also can't afford to hire lawyers. Some give up; some try to represent themselves. Jefferson said it should be possible to streamline procedural rules for certain cases. Texas might offer standardized forms for married people without children who are seeking an uncontested divorce, as some states already do. Civil cases involving relatively small figures, less than $100,000, could be exempted from some of the more burdensome evidentiary standards. And across the state, Jefferson added, there is ample room to modernize and streamline operations. "One of the more intractable barriers to justice," he said, "is antiquity." Bills have been filed in both the House and the Senate, he noted, that would encourage people to file relevant documents electronically rather than on paper.

Such procedural tweaks, however, will only address part of the problem for Texans seeking their day in court. This was another reason Jefferson called for more legal aid funding. Residents of Texas, he noted, are only eligible for legal aid if their household income puts them under 125 percent of the federal poverty line; some states set the eligibility figure at 200 percent. "If the remedy is unaffordable," he said, "justice is denied."

Jefferson's speech might have been overly optimistic. The base budgets in the House and Senate allocate no more state money for legal aid this session than they did last time around. It might be that the judiciary, however, is among the many groups that sees more potential for reform in this legislative session than in the previous one. And it was, after all, March 6th. If a Texan gives a speech on the anniversary of the fall of the Alamo, you can bet that battle will be invoked.

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