A Basic Human Right: Meaningful Access to Legal Representation

Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law

University of North Carolina School of Law

The UNC School of Law Human Rights Policy Seminar recently released its study on meaningful access to legal representation in the United States.  The report, A Basic Human Right: Meaningful Access to Legal Representation is intended to aid advocates who seek to utilize international and regional human rights bodies, specifically the Inter-American Commission on Human Rights, for assistance in improving the judicial system in the United States and in pressuring the U.S. government to provide a universal right to meaningful access to legal representation.  Many legal scholars and a growing number of democracies agree that a fair and impartial judicial system requires a right to counsel.  Indeed, for many individuals, having access to legal representation can make the difference between maintaining and losing ownership of one’s home, having enough food to eat, keeping one’s family together, or obtaining protection from threats to bodily harm or even death.  Those who have no means to protect and enforce their fundamental rights will have diminished trust in their government and little faith in the Rule of Law.  These propositions are hardly new and their fundamental truths have been well-established.

The report demonstrates that international and regional human rights bodies have encouraged the United States to provide meaningful access to legal representation as a basic right. Relatedly, it makes the case that the various affirmative rights that the United States is obligated to protect pursuant to both domestic and international human rights norms cannot be realized without meaningful access to legal representation

Section One of the report establishes the basis in international and regional human rights norms for a universal right to meaningful access to legal representation. The section also provides a brief overview of the considerable inadequacy of the protection of these rights in U.S. jurisprudence.  Section Two examines the failure to provide a right to legal representation in civil proceedings and describes the disturbing array of fundamental rights that are left unprotected for those individuals who are unable to obtain counsel on their own in civil proceedings. Without a right that allows these individuals to access counsel, their fundamental interests in housing, employment, family, sustenance, and more are left unprotected and vulnerable to erosion.  Section Three surveys the consequences of depriving immigrants in removal proceedings of the right to counsel. The section describes the effects of the deprivation of liberty that immigrants suffer on their ability to represent themselves and the fundamental unfairness of the immigration court system. These circumstances reveal the desperate need for counsel to advocate for respondents’ rights throughout the process, particularly because legal representation has been shown to have a on the outcome dramatic effect for immigrants.  Finally, Section Four focuses on the criminal defense system in the United States, which is the one area where a right to counsel is recognized. However, quality legal representation is a rare experience for indigent criminal defendants. Due to chronic underfunding and inadequate assurances of the quality of counsel, even this area of U.S. jurisprudence fails to meet obligations under international and regional human rights norms. Criminal defendants without access to effective legal counsel do not receive the protection of their fundamental right to liberty that the United States has promised to provide.

 The report serves as a compendium of international and regional human rights standards related fundamental protections and the obligation of the United States to assure meaningful access to legal representation in order to realize those protections.  It concludes with the suggestion that advocates consider the invoking the guidance and authority of the Inter-American Commission on Human Rights which is well-positioned to consider the human rights obligations of the U.S. government to provide meaningful access to legal representation to all.