"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Sunday, March 15, 2015

For how long will this nation continue to send children to jail without providing them a counsel to defend themselves?

It is often said that one can judge the true nature of democracy in a nation by the nation's treatment of its most vulnerable members.

The treatment of children by American courts in juvenile and criminal proceedings shows that America has a long way to go towards the true democracy.

Only in 2005, 10 years ago, did the U.S. stop executing children.

Only 3 years ago did the U.S. Supreme Court rule that children may not be sentenced to life without parole as a mandatory sentence, that such sentencing would be a violation of the 8th Amendment.

Nonetheless, according to ACLU, 2,570 individuals convicted as children and sentenced for life without parole, remain sentenced.  Apparently, in the U.S. Supreme Court's "wisdom", the court's pronouncements of what is or is not a violation of the U.S. Constitution enacted in the 18th century does not have a "retroactive effect", a completely illogical concept.

The abysmal treatment by the American judicial system practice is also demonstrated by the pattern and practice of incarcerating juveniles without the benefit of counsel that continues to be a dreadful reality in many states.

The practice caught national attention when a judge in Luzerne County, Pennsylvania, was exposed and ultimately charged for racketeering in a scheme of receiving kickbacks from private actors who built a juvenile jail and needed to fill it in order to receive money from the county.  The judge, for kickbacks, filled that jail with children who the judge sentenced to deprivation of their liberty without the benefit of counsel.

Yet, what the former judge Ciavarella practiced for kickbacks, ruining lives of 2000 children in the process, is practiced throughout the country, and I do not see much of the media attention to that problem.

In Ohio, as of 2004, 15% of children committed with the Ohio Department of Youth Services (juvenile facilities) and 20% placed with the community corrections facilities (adult jails) were unrepresented by counsel.

Detention of juveniles after court proceedings without legal representation was reported in Tennessee in 2014.  Please, note that Tennessee continued what enraged the nation in the Pennsylvania "Kids for Cash" scandal long after exposure in Pennsylvania and, apparently, in defiance of established constitutional precedent of nearly half a century that is described below.

In New Jersey, the child's right to legal representation in the juvenile proceeding is reportedly linked to the income of the child's parent or law guardian, which is, in my view, unconstitutional, because a child himself or herself have no income, and should be entitled to public defender anyway.

A parent's duty of supporting a child does not extend to paying for a lawyer in juvenile proceedings, and parents may have significant conflicts of interests in such proceedings and may be actually the people who reported the child and triggered the proceedings, so they would definitely not be interested to pay for the child's lawyer.

Unfortunately, the U.S. Supreme Court blundered in the precedent on point, In Re Gault, 387 U.S. 1 (1967) by conditioning the child's right to counsel on parents' income, even though it found that a child has a constitutional right to counsel in proceedings that may result in deprivation of liberty.

Yet, at the very least, the U.S. Supreme Court stated, among other things, that "the condition of being a boy does not justify a kangaroo court", In Re Gault, 387 U.S. 1 (1967).

Apparently, for many courts across this nation, being a youth still justifies a kangaroo court, and I do not see any significant movement from state bar associations to change that.

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