Law as a Labyrinth for the Indigent

-- 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

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 may have made sense in the past when almost all laws proscribed conduct malum in se. Even an amoral prohibition like tax laws had a long history of acceptance as being part of a social compact in which benefits by the government were offered for a fee charged to citizens. However, an overwhelming array of laws now proscribes conduct malum prohibitum, outlawing morally neutral acts with seemingly weak justification. Moral compass no longer protects the uneducated poor. Defenders of this archaic doctrine say that it is a rule of fairness, preventing 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 guilt because the alternative would require the court to make time consuming determinations as to the merits of people’s defenses. The perpetuation of this rule is condoning violation of the fundamental 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 illegal ex ante, and at least diligently represent them ex post. This problem is compounded by the courts’ inability to accommodate the poor. Like in Jarndyce and Jarndyce, procedural mechanisms make trials incomprehensible and interminable; consuming what little wealth the poor have at a much faster rate than they did Jarndyce’s estate. To illustrate, the mean time it takes for a federal court to rule on a Rule 12 motion in a civil trial is 130 days and about a third of civil cases take more than a year to resolve, long enough to consume the savings of someone who makes $7.25 per hour. The indigent are further prevented from meaningfully defending themselves because the courts are not trained to listen to their way of speaking. The indigent speak in colloquial terms and often evoke emotion and convictions to persuade. The courts, trained in the deductive thinking, are unreceptive to this kind of narrative and find it unpersuasive.

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; . . . 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. Despite the efforts of David Dudley Field in simplifying civil procedure and eliminating formalized and verbose pleading requirements, subsequent modifications and additions in the Federal Rules of Civil Procedure and state civil codes largely reversed those efforts.

Lawyers as Ariadne’s String

The legal profession should be Ariadne’s string guiding the indigent through the legal maze. This is so because slaying the Minotaur by abolishing the legal system creates chaos and disorder, and rebuilding the labyrinth by remaking the legal landscape is difficult because the indigent are not meaningful constituencies to politicians who monopolize the power to change. However, the reality is not encouraging. There is a massive shortage of lawyers willing to represent the poor. Public defenders only represent those charged with crimes, who represent only a portion of the indigent in need of legal services. Public interest groups are also selective in choosing their clients as they are issue-focused and represent defendants who will further their social agenda. Private lawyers, a shockingly low proportion of whom meet even the 50-hour recommendation for mandatory pro bono work, 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 LSC anticipates 393 staff reductions in 2012. All these mechanisms are underfunded and understaffed, and in this respect, Ariadne’s string is too short to be useful.

The Minotaur

Unlike the myth, here the Minotaur is the product of the labyrinth. A consequence of legal illiteracy is the systematic bias against the indigent manifested through higher rates of arrests and convictions, longer prison sentences, and denial of parol. In civil proceedings, the poor are more likely to be found liable because of their inability to effectively defend themselves. It seems that instead of perpetuating a default rule based on a depressing view of humanity in which people will 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. Also, by making statutes more accessible and investing in legal education for the masses, use of the ignorance excuse could be kept to a minimum. 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.