Law as a Labyrinth for the Indigent

(to be edited further) -- By SoYeonKim - 14 Feb 2012

Daedalus' edifice imprisoning the Minotaur was at least a unicursal labyrinth with a single non-branching pathway leading to the center. Theseus only needed a ball of string to find his way back out. The poor are not so fortunate. For them, the law is a multicursal maze designed to be as difficult to navigate as possible.

Law as a Labyrinth

What makes law a labyrinth? It is near impossible for laymen to access and make sense of vast bodies of statutes, ordinances, and regulations without legal assistance. The adverse social impact of the difficulty of understanding the law is aggravated by the rule of ignorantia juris non excusat. This legal principle that ignorance of the law does not excuse liability for violating it may have made some sense in the past when almost all laws proscribed conduct malum in se. Even the few prohibited conduct void of morality like tax law had a long history of acceptance in that they were part of a social compact in which the public benefits offered by the government were to be exchanged with a fee was charged to the citizens.

However, an overwhelming array of laws now proscribes conduct malum prohibitum and outlaws morally neutral acts with seemingly weak justification. Moral compass no longer protects the uneducated poor. Defenders of this archaic doctrine would say that it is a rule of fairness. It prevents people from avoiding the consequences of their crimes by claiming ignorance. To me, it seems more like a rule of economy in which the system punishes those who commit crimes in a structure where precise knowledge of the law is impossible and presumes fault because the alternative would require the court to make time consuming and difficult determinations as to the merits of people’s defenses. The perpetuation of this rule is condoning violation of fundamental principles of right to fair trial for sake of modest economy or a distorted sense of fairness.

Whatever the rationale behind this rule, it has disproportionately targeted the poor. The rich are less affected by the difficulty of knowing the law because they are financially capable of hiring lawyers to tell them what is legal and illegal ex ante, and at least diligently represent them ex post. For the uneducated, knowing the law requires more than going to the local law library and reading statutes. Statutes are full of terms of art like “consideration,” “reasonable,” and “firearm,” that mislead readers with their counterintuitive legal definitions. The problem is compounded by the fact that once they disobey the law they could not possibly have known, the courts are not favorable in the judgment of the indigent. Like in Jarndyce and Jarndyce, the legal process and the technical procedural mechanisms make trials incomprehensible, arcane, and interminable; “becom[ing] so complicated that no man alive knows what it means” and consuming what little wealth they have at a much faster rate than it did Jarndyce’s estate. http://www.gutenberg.org/catalog/world/readfile?fk_files=2396481&pageno=5

The indigent are further deprived of meaningfully defending themselves because the courts are not trained to listen to their way of speaking. The indigent speak in informal layman's terms and often evoke emotion and convictions to persuade. The courts, trained in the deductive thinking, are unreceptive to this kind of narratives and do not find it persuasive. Also, opinions and hearsay are barred by evidentiary restrictions.

Madison recognized in Federalist No. 62 that “ [laws] will be of little avail to the people, . . . if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” But his insight did not change the system. In fact, despite the efforts of the highly influential Field Code in simplifying civil procedure and eliminating formalized and verbose pleading requirements, the subsequent modifications and additions in the federal rules of civil procedure and state civil codes, largely reversed the efforts to simplify.

Lawyers as Ariadne’s String

So what is the legal profession’s role in this quandary? We want lawyers to be Ariadne’s string guiding the indigent and uneducated through the legal maze (although the analogy is somewhat strained, as Ariadne’s string was meant to help Theseus escape the labyrinth, not to navigate it). This is so because slaying the Minotaur by abolishing the legal system is an unrealistic avenue of recourse and exposes the indigent to more criminal and civil sanctions and rebuilding the labyrinth by remaking the legal landscape is difficult because the indigent are not meaningful constituencies to politicians who monopolize on the power to change.

The reality is not very encouraging. It seems that the legal profession is complacent because it feeds on this ignorance of the masses. The predicament is exacerbated by the massive shortage of lawyers willing to represent the poor for free. Public defenders only represent those charged with crimes, who represent only a portion of the indigent adversely affected by the law. Public interest groups are also selective in choosing their clients as they are issue-focused and only represent defendants who will further their social agenda. Private lawyers fulfilling mandatory pro bono requirements, a shockingly low proportion of whom meet even the minimal 50 hour recommendation due to escalating requirements for billable hours, never represent the indigent against large corporations, their potential clientele. Finally, the Legal Services Corporation, the largest provider of civil legal aid funding for the poor in the country is the easiest target for congressional budget cuts. Nonprofit legal advice programs nationwide experienced a $72 million cut in funding from Congress since 2010 and the Legal Services Corporation anticipates 393 more staff reductions in 2012. All these mechanisms are underfunded and understaffed, and in this respect, Ariadne’s string is far too short to be useful.

The Minotaur

A consequence of legal illiteracy is the systematic bias in the legal system against the indigent manifested through higher rates of arrest, charges, convictions, long prison sentences and denial of parol. In civil proceedings, the poor are unable to find legal representation and pay damages and fines. Unlike the myth, here the Minotaur is the product of the labyrinth. While the potential causes for this bias and the corresponding solutions are too numerous to discuss, for the purposes of this essay, I would argue that instead of perpetuating a default rule based on a depressing view of humanity in which people will lie and fabricate excuses to avoid liability, the profession should have a little more faith in the legal system’s ability to determine meaningful factors through discovery and trial. Instead of expecting the uneducated poor to know what the system has made virtually impossible for them to know, by couching the law in layman’s terms, making statutes more accessible, investing in legal education for the masses, and actively publicizing laws, excessive use of the ignorance excuse could be kept to a minimum. While there are always settled legal rules, a trial is every person’s forum to assert that his case is unique. In a reformed system, people will not be held responsible despite the impossibility of knowing the law, but rather have a chance to prove that they in fact should be excused.