Congress Wants Its Own Legal Aid

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.

The House has hidden a troubling elitist provision in its 1998 appropriations bill that finances the departments of Commerce, Justice and State, and the Judiciary.

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 bill.

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 a year.

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 prosecution unfair.

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 eliminated.

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 lawyers.

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. No appeal.

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 help them.

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 own."

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 documents.

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

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