Daryl K. Brown wrote in the Penn Regulatory Review wrote about Professor Benjamin H. Barton and Judge Stephanos Bibas new book, Rebooting Justice, "all is far from well in the nation’s civil and criminal justice systems."
Barton and Bibas make the case that the dramatic transformations of American justice have been insufficient and, in some respects, ill-conceived—sometimes due to unintended consequences. In this brief response to their work, I will focus on their criticisms of and proposals for the criminal justice system, which the authors condemn as even less innovative than the nation’s system of civil justice.
One problem, Barton and Bibas argue, is that the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright has not lived up to its promise of assuring every criminal defendant effective representation from a skilled lawyer—which is a failing of the political system. Gideon depends on legislatures adequately funding defense lawyers, and it is now clear that many will not.
A familiar, unhelpful response of critics is simply that they ought to. But Barton and Bibas accept the political reality that funding from legislatures is unlikely; instead, they look for realistic—if perhaps second-best—solutions. Two of their key ideas are controversial but meritorious.
First, they would “bow to reality” and cut back Gideon’s scope, so that defendants would no longer have a right to counsel if charged only with an offense punishable by less than six months in jail, the same line that defines the right to a jury trial. That proposal is potentially a big deal: There are many times more petty offenses than serious felonies in U.S. courts.
Second, they target the definition of “unauthorized practice of law,” which gives lawyers a monopoly over providing legal services. And this monopoly is why legal services provision looks so different from the provision of medical services. Regulation of medical practice permits not only doctors, but a range of other skilled, licensed professionals—nurses, nurse-practitioners, physicians’ assistants, and the like—who provide important services at lower cost. But the legal services market has no equivalents.
Certifying skilled nonlawyers to provide certain services ought to bring down prices, putting them within reach of people unable to afford lawyers. On the civil side, for example, paralegals could draft wills, or special advocates could handle bankruptcy or debt collection cases. Criminal courts could introduce new kinds of certifications for “criminal defense advocates,” trained in three semesters’ worth of law school instead of six and at much less cost, who could represent people charged with certain kinds of offenses—perhaps only misdemeanors, perhaps more serious charges as well.
The United Kingdom and Ireland already have taken a step in this direction: Unrepresented parties can have a nonlawyer “McKenzie Friend” assist them in court. Charities have arisen to provide people with experienced McKenzie Friends, and one can even hire a McKenzie Friend for a fee. Scotland allows “lay representatives” to speak in court on behalf of parties and conduct litigation.
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