Justice for Half

One in two low-income Americans seeking legal help does not receive it, a new report shows.  The report paints a grim picture of a two-tiered justice system, in which wealthy people are able to hire lawyers to help them get their “day in court,” while low-income families must face life-changing legal issues without the same assistance.  The report, Documenting the Justice Gap In America, was released this week by the Legal Services Corporation (LSC), the federal body that funds legal assistance for low-income Americans in civil cases. 

The study found that budget shortfalls prevent the 137 local, LSC-funded legal aid providers from helping half of the eligible potential clients who contact them seeking help.  Parents trying to protect their custody rights; individuals unable to collect the government support they need to pay their mortgage and feed their families; and workers fighting to obtain hard-earned wages illegally denied to them—are all being turned away due to lack of funding for legal aid.  The report estimates that in a year, almost 22,000 people seeking help to save their homes from foreclosure alone will be turned away by LSC grantees.

These figures likely understate the current crisis in legal representation.  The U.S. Census Bureau reports that the number of people eligible for LSC-funded services (people living at or below 125 percent of the federal poverty level) grew to 53.8 million in 2008, up from 50.8 million just one year before, and even these figures capture just the recession’s start.  Only a fraction of low-income people with legal needs contact legal aid offices at all, and while LSC reports that half of those seeking help are “served,” some receive just advice, not full representation in court. 

In a case dealing with issues as important as child custody, the loss of one’s home, or wage theft, standing alone in a courtroom, without the help of a lawyer, would be unthinkable to people of means.  Low-income families are left without other options.  There are ten times more private attorneys providing personal legal services to people who can afford it than there are legal aid lawyers serving the poor.  And the poor suffer because of it; the report cites a growing body of research demonstrating that those without legal representation fare worse in court.

It is not just the poor who suffer.  The court process is slowed and court costs multiply when litigants enter the courthouse without knowledgeable representation.  Communities are drained of wealth when neighbors’ homes are foreclosed.  Consumers lose out when lenders are allowed to continue deceitful practices.  And children suffer when family problems go unaddressed.

As the number of Americans with legal needs and eligible for federally financed legal aid swells, national and state-level responses fall woefully short.  To date, federal stimulus bills have included no funding for legal representation, and though Congress is considering upping LSC’s funding for Fiscal Year 2010, the proposed $10 – 50 million increase will not come close to the doubling of LSC funding needed to provide merely “necessary access to civil legal assistance,” according to the report.

Further exacerbating the effects of funding shortages are Newt Gingrich-era federal restrictions on LSC grantees that not only limit the tools legal aid lawyers can use, but also create inefficiencies throughout the legal aid system.  Unconscionable at this time of expanding need, a restriction prohibiting clients of LSC-funded programs from participating in class actions forces legal aid organizations to waste resources by unnecessarily litigating similar cases one-by-one.  Unable to seek attorneys’ fees, even when otherwise allowed under statute, the restrictions cause LSC-funded organizations to lose out on a potential funding source.  And if an LSC grantee wishes to “un-restrict” its non-LSC funds, it must set up a wholly separate organization, creating major losses in duplicated overhead and administrative costs.

Only when all low-income people can obtain a measure of legal assistance in cases related to basic human needs, from lawyers with all the requisite tools, will the promise of “equal justice under law,” inscribed on the Supreme Court, ring true.