Historically, I have found that the generally progressive community — even the generally progressive legal community — has been relatively traditional in is approach to the access to justice crisis. The “line” has been right to counsel, and increased funding for LSC.
It is perhaps a harbinger of acceptance of a more nuanced view that the American Constitution Society (ACS) has released an issue brief titled Deconstructing the Right to Counsel.
While the document does not represent an official ACS view, and while its title initially scarred me off as a too theoretical document, in fact the document is useful as laying out the reasons that a binary right to counsel or nothing analysis is counterproductive, and as suggesting a broader perspective.
The writer, Lauren Sudeall Lucas, lays out a value driven approach in which the values discussed are access, efficiency, fairness and legitimacy.
. . . the value framework has potential to better inform and foster more constructive dialogue among policymakers about the best way to accomplish shared goals on a system-wide level, rather than devolving into a war over specific entities, fought in terms of numbers and dollars. When the only currency for reform is lawyers, there is little room for negotiation or creativity. However, when the menu for reform includes many options, there is more reason to have a constructive conversation about which would be the best fit and why. This framework could serve as a basis for such a discussion. Seeking a sound basis for future policy decisions, many commentators have called for increased data collection to evaluate the effectiveness of various mechanisms providing an alternative to full representation by counsel; this framework could also be used to develop metrics to analyze such data.
The paper will be particularly useful to cite to academics out of touch with the changed reality on the ground.
Richard Zorza's Access to Justice Blog 