Lengthy appropriations bills offer the opportunity to tuck away tricky little
amendments that can't stand up to the light of public debate. Congress is
skilled at such skullduggery.
Congress Wants Its Own Legal Aid
The House has hidden a troubling elitist provision in its 1998 appropriations
bill that finances the departments of Commerce, Justice and State, and the
Wyoming's renowned criminal defense attorney Gerry Spence calls the provision
"arrogant and haughty beyond belief."
The House Commerce-Justice appropriations bill (H.R. 2267) creates a special
legal services program only for members of Congress and their staffs.
Under the provision, if the Department of Justice prosecutes a case against
a member of Congress or a congressional staff member and loses, the department
must reimburse the person "for any legal expenses and other legitimate
expenses incurred" in connection with the prosecution. No such reimbursement
exists for ordinary citizens.
The reimbursement giveaway is concealed in a section innocuously entitled
"General Provisions," section 616, at the very end of the 117-page
It passed unanimously in the House Appropriations Committee, as did the
entire appropriations bill. H.R. 2267 will now go before the full House
for debate when Congress reconvenes in September.
Call it welfare for the wealthy --- members of Congress already earn $133,600
Section 616 treats members of Congress as a special class of citizen. "Some
animals are obviously more equal than others," to paraphrase George
Orwell's Animal Farm. Middle-class citizens caught in a criminal
indictment must hock their homes to defend themselves -- and even if they
win, they swallow the economic loss.
Under this legislation, the middle class will also be required to pay the
legal bills for members of Congress --- or for keeping them in prison. Taxpayers
pick up the tab -- guilty or not.
Spence, who defended Randy Weaver against federal prosecution after the
excesses of federal law enforcement officers on Ruby Ridge in Idaho, was
blunt in his assessment of the reimbursement provision: "So we are
to believe that members of the House and Senate are super-citzens, that
is to say, they have rights not ordinarily enjoyed by the species. The poor
cannot have lawyers. The forgotten in the projects can have only public
defenders with limited experience and severely truncated budgets But the
new super-citizens, namely, the House and Senate members who have been charged
unjustly and acquitted are, by this bill, to get super dispensation commensurate
with their super status. They get their attorney's fees and their expenses
paid if they win an acquittal.
"We should be encouraging, not discouraging the Department of Justice
to keep an eagle eye on the mother-womb of crime -- namely, the Congress
of the United States, where criminal activity is exceeded only by that secreted
by the Department of Justice itself.
"As between the Department of Justice and the Congress, I don't know
which deserves the most scrutiny. But if these two entities could keep each
other fully occupied, what a break for the ordinary citizen."
Under this provision, there is no cap on the amount of money a member of
Congress can spend on his or her legal defense. Successful D.C.-area attorneys
could take congressional cases on a contingency basis, upping their hourly
fees to outlandish proportions -- for which the taxpayer could be charged.
Members of Congress are already authorized to set up legal defense funds
that accept donations in such prosecutions. Rep. Henry Hyde, R-Ill., recently
established a legal defense fund. Donations don't rob the taxpayer.
Rep. John Murtha, D-Pa., introduced this amendment in the House Appropriations
Committee in late July.
Murtha bases his rationale for the reimbursement plan on the four-year ordeal
that Rep. Joseph McDade, R-Pa., suffered before being acquitted in 1996
of federal bribery and racketeering charges. Murtha considered the lengthy
McDade spent more than $1.25 million defending himself. However, almost
all of that money was paid by a legal defense fund established for him.
"This provision could deter prosecutions by the Justice Department,"
noted Gary Ruskin, director of the Congressional Accountability Project,
a non-profit congressional watchdog organization.
He explained that reimbursements would reduce the department's budget and
would eventually diminish investigations in other areas.
"There are other weird incentives that are set up here. If you're a
defense attorney for a member or staffer, you want your client to be indicted
under this provision. ... It monkeys with the process in ways that are just
not good," Ruskin said.
Ruskin pointed out that if a member of Congress can't afford to hire a lawyer,
he or she can get a public defender, just like anyone else.
Ironically, in the same bill in which Congress establishes its very own
big bucks legal defense service, it drastically slashes funds to legal services
for the poor. The appropriation for the Legal Services Corporation was cut
nearly in half --- from $278 million in 1996 to $141 million in H.R. 2267.
Legal Services finances hundreds of local programs around the nation to
provide civil legal assistance to those who cannot afford it. It helps families
in divorce settlements, in job discrimination and child custody cases, wage
and disability claims, filing bankruptcy, housing disputes, Social Security
claims, and helps solve numerous other important legal problems.
Apparently, our $100,000-plus a year Congress folk would rather provide
legal aid for themselves. To hell with the poor, to hell with the taxpayers.
Arizona Squeezes Prison Appeals
The Arizona Department of Corrections was to permanently close all but one
of the 35 law libraries in its prison system on August 4. This action is
not the result of some new progressive penal philosophy. It's tit-for-tat.
A payback for inmates who had sued the corrections department for greater
access to updated legal materials and had won -- until the case reached
the U.S. Supreme Court.
State DOC Director Terry L. Stewart claims that the 1996 high court ruling
(Lewis vs. Casey) allows his department, "not the courts, to
fashion an inmate access to the court system that is both meaningful and
adequate." He noted in his June 17 press release that the new approach
focuses on "cost effectiveness for the Arizona taxpayers."
So the law libraries will be closed -- except one that is part of a lawsuit
filed with the Arizona Supreme Court which claims that prisoners' rights
would be violated under the Arizona Constitution if the law libraries are
If the inmates lose this lawsuit, that library will be closed, too, according
to DOC Legal Services attorney Roger Katz.
How will inmates gain access to the courts when the law libraries are eliminated?
In the Lewis decision, Supreme Court Justice Antonin Scalia suggested
how the state of Arizona might meet the constitutional demand on states
to provide inmates access to the courts: "replace libraries with some
minimal access to legal advice and a system of court provided forms ...
The state of Arizona is taking Scalia literally, with a heavy emphasis on
"minimal." Eye-of-a-needle minimal.
The corrections department will provide paralegals to help inmates file
motions in the courts. Nine paralegals to serve 23,000 inmates in 14 prison
complexes, spread over the state. And 11 law books, three collections of
legal forms, and two self-help manuals will be set aside in a special section
of each prison library. The Arizona Constitution is not included among the
legal references supplied by the Arizona corrections department -- nor is
any case law.
In Arizona, although you must be a member of the bar to represent someone
in a court of law, you don't have to be a lawyer to give legal advice. In
most other states, paralegals are not allowed to give legal advice -- sensibly
that is left to attorneys. And appeals are complicated for even experienced
The department of corrections contracts with the paralegals. In a real sense
they work for DOC.
The paralegals will be the gatekeepers for inmates' access to the courts.
Under the new system, an inmate requests to see a paralegal to make a motion
to a court. A paralegal reviews the request to determine whether it is "frivolous"
or not. If the paralegal refuses to accept the filing, the matter ends.
Since paralegals are closely connected to the DOC, will they reflect the
prejudices the department might have against particular inmates? DOC Director
Stewart didn't think so. "Why would they?" he asked.
In an appeal from conviction or for violations of civil rights, the DOC
will be the defendant. In a petition for a writ of habeas corpus -- to demand
by what legal reason the inmate is imprisoned -- the DOC will be the defendant.
In any lawsuit involving the conditions of confinement, the DOC will be
the defendant. And the one person who can deny your right to file an action
works for the DOC.
These are the only four categories of filings allowed in the new system.
Donna Hamm, executive director of the inmates-rights group Middle Ground
Prison Reform, located in Tempe, elaborated: "In the fabric of life,
prisoners are still people and they also have many other valid issues they
still have to deal with when they go to prison. You know, divorces, wills,
probate, tax situations, parental severance and child custody issues. And
they are completely precluded under this particular system from having any
ability to participate in those actions from the prison. And those are the
things that affect them dramatically."
This system threatens to provide inmates a minimum access to the courts
rather than law books -- which is not what Scalia and a majority of the
high court intended, nor what the Constitution demands.
But the restrictions are even more draconian. According to Arizona DOC policy,
inmates may receive assistance from paralegals in the initial filing of
pleadings only. After that the inmates are on their own, unless the courts
If an inmate files for a petition of writ of habeas, the state will respond
with a motion to dismiss. The inmate then has 20 days to respond and must
give his legal reasons and cite case law to support his petition.
The paralegal will not be available to help at this level since it is not
an "initial filing." The inmate has no case law available to him,
because the legal materials in the prison library do not provide that information.
He has a limited number of days to respond and no resources.
The inmate will be forced to ask the judge for help and if any lawyer is
appointed to him, that lawyer must catch up in a short time.
Even DOC attorney Katz had to admit that it puts the inmate "in a quandary."
Katz refined the meaning of "initial filing": "Even if an
inmate wants to amend his complaint -- which is done often -- he's on his
Any legal filing on the part of an inmate requires paperwork and photocopies.
Under the new system, prisoners must turn over their confidential legal
documents to DOC employees for up to 48 hours -- to be inspected for relevance
to the filings.
Those documents might be seen by those who could be parties to the pending
legal action. The inmate has no control over access to his private legal
DOC Director Stewart claims this new policy hews closely to the suggestions
that Scalia offered in the Lewis decision. In the detail, it does
not. And detail is everything.
It would be easier for an Arizona prisoner to squeeze through the prison
bars than to gain meaningful access to the courts under these new regulations.
The Lewis ruling would allow any state to follow the Arizona model.
That would be a serious mistake. Arizona's policy will be challenged and
challenged until it finally becomes reasonable.
Charles Levendosky, editorial page editor of the Casper, Wyo., Star-Tribune,
has a national reputation for First Amendment commentary. He can be contacted
c/o this newspaper or by e-mail at email@example.com.
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