Justice in Jeopardy
By John Cary
“Justice in Jeopardy” is the fundamental theme that runs through this year’s President’s Page. Washington does not adequately fund basic elements of its justice system. Here’s the shortfall:
Gaps in Justice Funding
- Civil Legal Services for the Indigent $ 18 million
- Trial Courts $ 53 million
- Criminal Defense for the Indigent $132 million
- Total $203 million
Not only is there a funding gap, but the way Washington funds justice is outmoded and inadequate. Washington relies on local government, predominantly counties, to pay most of the cost of trial courts and indigent criminal defense--local government pays 89 percent while state government pays only 11 percent. These percentages are a remnant of the past and no longer reflect the modern relationship of state and local government.
The state now dominates the government agenda. State revenues are larger and more robust than county revenues, especially since recent initiatives have limited county revenues. But we continue to fund justice as if the world were the same as it was a century ago. We must modernize the system for funding justice. State government must take on a substantial part of the burden.
The Board of Judicial Administration (the body that speaks for the courts on policy and legislative matters) has proposed a long-term program of incremental change to improve funding and reform the funding system. Rather than a single bill that tries to change everything at once, BJA has recommended taking one step at a time. Over a period of time, perhaps as much as a decade, and guided by the vision developed by the Court Funding Task Force, the ultimate result will be increased funding for trial courts, civil legal services, and indigent criminal defense and a justice funding system that reflects modern circumstances, especially the role of state government in paying for justice.
This legislative situation brings me to the point of this column: In order to achieve the goals of the justice funding program, the entire legal community must be prepared to work together on a series of bills on different, sometime narrow subjects, perhaps for as long as a decade. No one can sit on the sidelines during this time.
The problem is that an individual measure will advance a specific interest, for example, civil legal services. It will be tempting for supporters of other interests, e.g., trial court funding, to remain more or less on the sidelines, leaving the heavy lifting to the community directly affected by the measure. This approach will not work in the campaign for justice funding.
Intertwined Interests. The finances of trial courts, indigent defense, and civil legal services are connected to one another. For example, if the state funds indigent defense, county money previously devoted to indigent defense be used for other purposes, e.g., to fill the gap in trial court funding. Thus, a measure that appears on the surface to fund one activity may also indirectly benefit another activity. Cooperation will benefit not only the specific community directly affected by a measure, but also the rest of the legal community.
Interconnections affect more than funding. Efficiency in one area can improve the efficiency in another area. For example, an adequately funded indigent defense may help to streamline the court’s handling of criminal cases. If the court can reduce resources devoted to criminal cases, it will have resources to use on the civil side. We need not only to increase the funding for specific areas but also to do it in a way that benefits the entire justice system.
Opportunity. The legislature responds to crises. Indigent defense is the present crisis. It was brought to public attention by extensive news accounts of scandals in Grant County, confirmed by the State Bar Blue Ribbon Panel, and given fiscal urgency by the ACLU’s class action suit against Grant County. As a result, indigent defense legislation is a good candidate for action in the upcoming session of the legislature.
In a year or two, another area will become the object of opportunity. If we take full advantage of the opportunities of the day, the interests of each area-- trial court funding, civil legal services and indigent defense--will be advanced over the full course of the justice funding program.
Avoid the Prioritizing Justice Issues Against Each Other. When the state has a serious budget gap as it does now, every request for funding meets the questions, “Where does the money come from? Whose budget do we rob to fund your request?” Legislators will ask us to prioritize, to choose one interest and to forget the rest. But we can’t be drawn into a discussion of whose needs are most worthy. We must stand together so that, for example, funding for civil legal services is not played off against funding for trial courts. We cannot let opponents turn justice funding into a zero-sum game.
Credibility. Different parts of the legal community have greater credibility in one area than in another. For example, lawyers can speak for court funding more easily than judges because they do not have a direct self interest in the outcome. On the other hand, judges are especially persuasive in support of civil legal services and indigent defense. If we are united, the most credible advocates can speak for a measure. And when measures affecting their particular interest are before the legislature, they can expect similar assistance from the rest of the legal community.
Support of the Entire Legal Community Needed. There are communities of active supporters for trial court funding, civil legal services, and indigent criminal defense. Much of this column has focused on the need for close cooperation and unity among these communities. But more is needed. The support and cooperation of entire legal community is crucial for success.
Often the legal community as a whole is in the best position to speak out. The bar can make the case on the basis of justice, not just a narrow interest. While a part of the bar might be seen as speaking for a narrow special interest, the general legal community as a whole cannot be accused of self-interested advocacy.
Conclusion. Trial court funding, indigent defense and civil legal services are worthy causes that stand on their own. Yet they are strands of a greater cause, that of justice itself. Supporters of each cause need to stand with the others--and with the entire legal community--in support of legislation that advances adequate funding and reform
of the funding system.
Lawyers care about justice; they care about the quality of the courts; they care about access to justice and protection for the disadvantaged. The entire legal community must come together and actively support the justice funding program.
John Cary is KCBA president. He can be reached at caryj@att.net.
