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.

Indeed. That's because the labyrinth on Crete was supposed to admit a hero who could return again: it was built to fail. The prison that encloses the poor is built to succeed forever.

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

When was there a time that there was no tax law, or that ignorance of tax law consisted relief from its imposition? You're not offering legal history, you're making it up.

However, an overwhelming array of laws now proscribes conduct malum prohibitum and outlaws morally neutral acts. 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. 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 this excuse could be kept to a minimum.

This line of argument, however accurate, is important in proportion to the extent that the bars in the cell doors of the poor are made of laws they rush against in ignorance. You haven't explained why this is most, or even much, of the legal unfairness experienced by the poor. Other aspects of the legal system come much more to mind, at least for me, whether I am thinking about J.M. Kelly's description of Roman civil procedure, or Bleak House, or Conley & O'Barr on American small claims court process.

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. Instead what we have are Caligula’s laws written in the columns of high buildings, indecipherable and impossible to reach.

Well, allowing for the fact that Caligula's laws hardly emerged in response to a comment by James Madison. What did emerge were the efforts of the codification movement in the US in the nineteenth century , including the writings of Theodore Sedgwick and Robert Rantoul, with which you might want to become familiar, and the codes of David Dudley Field, with which New York law students used to have some experience, and which none of your teachers could distinguish from the Code of Hammurabi at twenty-five paces.

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.).

And you couldn't possibly want to help the poor escape, by slaying the Minotaur (that would be terrorism) and remaking the legal landscape (that would be socialism). Right?

The reality is not very encouraging. It seems that the legal profession is complacent because it feeds on this ignorance of the masses. Ignorance of the law creates demand and drives up the price of legal services, although the effect that legal illiteracy of the indigent has on the price of legal services is minimal. The predicament is exacerbated by the massive shortage of lawyers willing to represent the poor. For those who are too poor to afford a private attorney, the options boil down to publicly funded public defenders, public interest groups, and private lawyers fulfilling mandatory pro bono requirements. All three mechanisms are underfunded and understaffed, and according to Building a Better Legal Profession, although large law firms have the most resources at hand to meet the demand for pro bono legal work, escalating requirements for billable hours lead to a declining commitment to pro bono work and “a shockingly low proportion of lawyers at large firms meet even the minimal 50 hour recommendation.” In this respect, Ariadne’s string is far too short and thin to be useful.

See SkylarPolanskyFirstPaper for a closer inquiry on these last points. But you're exaggerating the resources of the poor. Public defenders only represent poor people when they are charged with crimes, which is a small part of labyrinth imprisoning the poor. Most legal services organizations acting in the public interest are issues-focused organizations like mine, forming relations with clients in specific social contexts in order to further larger social aims. The provision of basic civil legal assistance to the poor, which was envisioned as an important part of Lyndon Johnson's anti-poverty initiative, the Great Society, was rapidly destroyed by the succeeding Republican government under Richard Nixon, and the Legal Services Corporation rapidly faded into the network of "underfunded and understaffed" specialist organizations you mention but don't discuss. Large law firm pro bono practices are bound to prevent conflicts of interest with their firm's clients, and will never therefore engage in widespread efforts on behalf of poor clients against banks, real estate developers, industrial polluters, etc.

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.

Here, too, an emphasis on criminal process leads to an underestimate of the real barriers enclosing the poor.

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. Investment in basic legal education and increasing the accessibility of laws will help prevent the abuse of the ignorance excuse. 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.

I've indicated in my comments above the places where I think some further effort would result in improvement of the draft, which overall is both clearly argued and sophisticatedly expressed.