Sam Halpert, PSJD Fellow (’14-’15)

Whenever I get a chance, I try to keep abreast of legal news to see whether there aren’t any tidbits I should be passing along to PSJD’s jobseeking and career-developing audience. This week, I got my first chance in a long while. Luckily, a few of the stories that caught my eye boarded the same train of thought, giving me an opportunity to ask them to file out in an orderly fashion for you. Here’s what I’m thinking about:

Just last week, a New York Times editorial tried to make sense of the Supreme Court’s (predicted) schizophrenic response to the two most ideologically-charged cases on its docket (Obamacare and same-sex marriage) by drawing a distinction between the US’ historical track-records expanding “civil rights” versus providing “broad-based prosperity”:

“The broad point is that the country continues to follow its basic historical arc on civil rights: They expand…The progress is uneven—and hard-won, as the surviving Selma marchers know well—but it is undeniable. Economic matters are different… broad-based prosperity is more complicated…It depends on a series of choices that society makes, on education, tax policy and, yes, health care policy.”

Making this jurisprudential move, the Times is in powerful company: As Judge Posner has put it, “the Constitution is a charter of negative rather than positive liberties.” He draws support for this conclusion from the US Supreme Court, who Stephen Holmes and Cass Sunstein have accused of “assum[ing] its validity without serious examination or even argument.” But this move should be interrogated, and it must be discarded, and another tidbit of news I encountered in today’s surfing demonstrates exactly why:

This Tuesday, Above the Law gave law school hopefuls a stark assessment of their future as public criminal lawyers: Louisiana has been laying off its public defenders to make up for a $5.4 million shortfall in their budget. An ABA study recently concluded that Missouri PDs spend so little time on their cases that the state’s system violates indigent defendants’ constitutional right to counsel—yet the Missouri Governor has withheld new funding for the PD budget, even after the state legislature overrode his veto. (Note: Last October, New York settled a lawsuit alleging a similar unconstitutional defunding of its own PD system.) In Massachusetts, a study last year found that some prosecutors make less money than courthouse janitors.  Massachusetts, like Missouri, doesn’t seem able to raise the funds to resolve its problems. ATL’s assessment?

“If you’re thinking of becoming a PD but aren’t sure, consider carefully. Embarking on a career as a PD is uncertain: it can be tough to get the job but easy to lose it, and the workload is high while the pay is low. The job might not be for you.”

The crisis currently facing America’s public lawyers (prosecutors and public defenders alike) illustrates perfectly the argument Holmes and Sunstein set out to make in the first chapter of their book, “The Cost of Rights:”

“Individuals enjoy rights, in a legal as opposed to a moral sense, only if the wrongs they suffer are fairly and predictably redressed by their government…To the extent that rights enforcement depends upon judicial vigilance, rights cost, at a minimum, whatever it costs to recruit, train, supply, pay and (in turn) monitor the judicial custodians of our basic rights…This machinery is expensive to operate, and the taxpayer must defray the costs. That is one of the senses in which even apparently negative rights are, in actuality, state-provided benefits.”

In other words, it’s hard to argue (as the New York Times just did) that the United States has followed  a “basic historical arc” of expanding civil rights when individuals’ ability to protect those rights is tied to its “more complicated” history of policy choices about how to spend the profits our economy produces. And when we don’t provide enough money to hire all the lawyers the public criminal law machinery needs at rates that will allow them to take care with their clients and pride in their work, it isn’t just a crisis for “us” as lawyers or “us” as career development professionals—it’s an existential threat to our society.  As Holmes and Sunstein note, “rights cost, at a minimum, whatever it costs to recruit, train, supply, pay and (in turn) monitor the judicial custodians of our basic rights.” In addition to competent judges, these custodians include both prosecutors (who are charged with ensuring that the state acts responsibly when it decides to attempt to take away individuals’ freedoms) and defenders (who are charged with ensuring that the state builds an adequate case when it does so).

One final shoutout to recent news:  Last week’s episode of John Oliver’s “Last Week Tonight” tackled our increasingly urgent infrastructure crisis:

“We’re currently doing a terrible job of maintaining all of our infrastructure… At this point, we aren’t just flirting with disaster. We’re rounding third base and asking if disaster has any condoms. And the crazy thing is, ask any politician from either side and they’ll tell you that infrastructure is incredibly important. Everyone agrees on this. In fact, at a recent hearing, both business and labor in the form of the US Chamber of Commerce and the AFL-CIO turned out to support infrastructure spending…”

Yet there’s no funding, and Oliver couldn’t get any answers from John Boehner’s office when he tried to ask for the Speaker’s plan for this issue. He ended his segment with a tongue-in-cheek appeal to Hollywood to help make infrastructure maintenance sexy. But unlike properly functioning roads and bridges, we already have many, many Hollywood blockbusters that make a properly functioning justice system sexy, featuring offices staffed by prosecutors and defenders with adequate time and resources to pursue justice for their clients.

…so when it comes to judicial infrastructure, what’s our excuse?