The retired Massachusetts Chief, in a Boston Globe op-ed, urging contributions to legal aid programs, shows an interesting shift in emphasis in terms of how we think about the access system. It’s caught in these two paras:
While judges and courts have worked hard to establish programs assisting unrepresented civil litigants and making them aware of legal services, based on my experience much more is needed to secure for them the same access to justice that we afford those charged in criminal cases. Not surprisingly, this need has taken on more urgency during the nation’s economic downturn, as more low-income individuals and families seek legal help to avoid being deprived of the basic necessities of life.
Nonprofit legal aid organizations are the most effective supplement to our court-sponsored programs for civil litigants in need. The dedicated lawyers and other professionals of legal aid organizations provide legal counseling to help ensure that low-income citizens at tipping points in their lives are represented in legal proceedings that can determine whether they can stay in their homes or keep their families safe from violence and abuse. (Emphasis added).
The shift is from treating court self-help programs as a second-best alternative to legal aid, to seeing reformed structures and programs in the courts as the core of ensuring access, and robust legal aid as a necessary and critical supplement in certain cases. We may not all like this change, but it reflects statistical and financial reality, and underlines the core fact — in the end the courts are fully responsible for access. While they can and should call on a strong legal aid system to assist in providing that access, weaknesses in legal aid funding can not be an excuse of any failure in the courts to provide such access. That’s the due process message of Turner. Nor, of course, do good court programs lessen the urgency of need for effectively funded legal aid.