More Two-Tiered Justice In The American Legal System

We all know that we have a two-tier justice system here in the US, one for corporations and the rich and another for pretty much the rest of us. Increasingly, however, it seems that we don't even bother to provide any legal services for the least among us. Thursday's NY Times had side-by-side stories which illustrates the current dichotomy.

Prosecutors are apparently nearing a settlement with Takata over the faulty airbags it produced and the company's decade-long effort to hide the fact that Takata knew their airbags were defective all along. The settlement reportedly includes a fine of $1 billion dollars but it remains unresolved as to whether the company will also plead guilty to criminal charges as well. Takata's defective airbags exploded without warning, killing eleven and injuring over 180 people in the United States alone. Over 40 million vehicles have been recalled because of the issue but there is no guarantee that all of them have or will be fixed as many drivers might ignore the recall as it only effects the airbag, not realizing the deadly possibilities.

The issue began in the early 2000s when the airbag maker opted to use a propellant for deployment that was known to break down and become unstable and prone to explosion over time. The propellant was a cheaper alternative and allowed Takata to gain market share and join the oligopoly of three companies that dominate the airbag business. The first explosion occurred in 2004 but the company treated the issue as purely an anomaly and did not report it to federal regulators. As the incidence of exploding airbags increased, Takata dismissed any inquiries by saying they were the result of isolated manufacturing problems. But the company did agree to use outside researchers to determine whether the propellant might be the problem. That study began in 2010 and the researchers reported their findings to the company in 2012. The report concluded that the propellant was indeed the culprit in the airbag explosions. Rather then reporting these findings and working to resolve the issue, the company sat on the report until 2014, when federal regulators demanded all relevant documents from Takata on the airbag issue. Incredibly, since the company was not under a formal investigation in 2012, it was apparently not illegal for Takata to withhold the study. Of course, the only reason they were not under formal investigation is that they had misled investigators in 2010 about the issue. The extent of the fraud inside Takata is extensive. Investigators have discovered emails as far back as 2006 where a Takata engineer tells his cohorts "Happy Manipulating" when sending airbag test results. Lastly, it is also clear that automakers, especially Honda and Toyota, conspired with Takata in downplaying and covering up the extent and danger of airbag problem. And the regulators are hardly blameless either.

So, a company that knew its product was defective for perhaps two decades and that it caused 11 deaths conspired to hide that fact from federal regulators for at least a decade. Yes, the result is a massive fine that may endanger the future of the company but there is potentially no criminal liability. At worst, Takata may declare bankruptcy and the resulting pieces will be picked up by the other two members of the airbag oligopoly.

The next story comes from Hobbes, New Mexico. Hobbes is the classic oil and gas boom town but it is in the bust phase ever since oil prices crashed a couple of years ago. Felonies have doubled since 2011 and alcohol and drug abuse and their consequences also have risen. The state of New Mexico has been struggling to balance its budget and its court system has been receiving less and less funding. The system faces an over $1 million shortfall this year so even more cuts are coming. Things are so bad that the state’s Administrative Office of the Courts recently said, "We are strained and we consistently hear prosecutors and public defenders tell us there are not enough of them to do the job that they ought to do. We’ve reached a point where the judges have grave concerns about the system’s ability to deliver justice." The state's New Mexico’s chief public defender, Bennett Baur, decided he had finally had enough. His public defenders in Hobbes were representing over 200 cases each. With further cuts coming and an inability to add qualified defenders, Baur ordered the public defenders in Hobbes to stop taking new cases. Says Baur, "We have to turn off the spigot. It is unconstitutional, inefficient and, frankly, not fair to represent more people if we can’t give them a functioning attorney." As of now, the situation remains unresolved, forcing more and more defendants to opt not to go to trial as they have no lawyer to represent them.

This lack of resources for legal help is not just restricted to red states or states with serious budget issues. In New York, Governor Cuomo took the opportunity of New Year's Eve to veto a bipartisan bill that sought to address the problems with the state's public defender system. The bill instituted state-wide standards for effective counsel as well as shifting the responsibility for funding from individual counties to the state. The bill would have established limits on public defenders' case loads, required a lawyer for a criminal's first court appearance, and provided resources for an adequate defense. The bill was actually prompted by a class action lawsuit that alleges the current system violates the U.S. Constitution, the New York State constitution and the laws of New York.

The legal system in the US today is in many ways indistinguishable from a banana republic. Well-connected corporations violate the law with impunity, avoiding any criminal responsibility for their actions and occasionally paying a fine. The executives at these companies can knowingly conspire to evade the laws but hide behind the corporate veil, avoiding any culpability for their actions. Meanwhile, the rest of us are literally defenseless in front of the power of the state. Underfunded and understaffed public defender systems merely provide the legal fiction that all defendants will receive their constitutional right to legal counsel.