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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