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How the Sequester Will Take Its Toll on Access to Justice

The vast majority of poor Americans cannot afford attorneys to help them in basic civil cases. Although the Obama administration’s latest budget includes increased legal services funding, it is still not nearly enough to do what needs to be done to help low-income families.

Published: April 15, 2013

In the weeks leading up to the 50th anniversary of the United States Supreme Court’s landmark ruling in Gideon v. Wainwright most of the public attention over the constitutional right to counsel focused, naturally enough, upon criminal cases. After all, nowhere is this Sixth Amendment due process right more important than in cases where a person’s life or liberty are on the line. And, sadly enough, never has the gulf been wider than it is today between the needs of indigent defendants and the ability of America’s justice systems to accommodate them.

But March 18th — the Gideon anniversary date — has come and gone and the truth is that the vast majority of poor Americans, who are of course law-abiding citizens, suffer terribly from a lack of counsel not because they are indicted or prosecuted but because they cannot afford attorneys to help them in basic civil cases — like divorce proceedings, foreclosure actions, and consumer cases. Here, too, there is a crisis, exacerbated by current financial conditions and tightening state budgets, that is in some ways worse than the one symbolized by Gideon, for the Supreme Court has never recognized a constitutional right to counsel in these types of cases.

This time I’ll give you the good news first. The Obama administration’s latest budget pitch, made public last Monday, includes a $430 million request for funding for the Legal Services Corporation, the “single largest funder of civil legal aid for low-income Americans in the nation.” This figure is $28 million more than the White House asked for last year and is $90 million more than Congress allocated for the 2013 fiscal year. It is also $119 million more than was requested by Bush administration officials in 2008 (although it was $20 million less than was requested by the Obama Administration for the 2012 fiscal year). 

It is imperative that Congress adequately fund these programs because they help precisely those citizens who need it most — military personnel returning home from service abroad, single parents who are struggling to pay the bills, families caught up in the wake of natural disasters. These people are our friends and our neighbors and our co-workers. As a matter of fact, they have to be. Programs funded by the LSC helped approximately 2.3 million people in America in 2011 — but turned away perhaps as many as 50 percent of the folks who asked for such legal help. According to recent Census Bureau statistics, one in five Americans — roughly 60 million people — qualify for legal assistance in their civil conflicts. The “Justice Gap” is how the experts at the Brennan Center and others put it.

“Legal services are needed to give everyone a fair shot at protecting their homes, families and livelihood,” the Brennan Center’s Mark Ladov told me Thursday. “But we can’t forget that this request is still less than the Legal Services Corporation received in 1976 when adjusted for inflation, despite the continuing growth of unmet legal needs of low and moderate income Americans. We are underfunding legal services even though we know that closing the justice gap will benefit families, communities, and the national economy.”

It’s about the economy, stupid. Ladov says that apart from whatever moral value there is in helping the less fortunate among us, “investing in foreclosure prevention pays for itself by stabilizing communities, saving lost property taxes, and preventing costly increases in crime and dislocation.” He says that “legal services for domestic violence victims pays for itself by reducing public healthcare costs, the need for police assistance, and lost jobs and wages.” And, he adds, society ends up paying anyway — “legal services for low-income citizens prevent evictions, saving $116 million in shelter costs in 2009–2010 in New York state alone.”

And now for the bad news. However laudable the White House’s figures may be, and no matter how close Congress now comes to matching the $430 million figure, this range of federal funding to help low-income families is still not nearly enough to do what needs to be done. And it’s not just about having taxpayers pay to help their neighbors resolve their civil disputes. There also must be much more public funding for court translators, who play a pivotal role today in helping some low-income citizens understand the nature of the proceedings in which they are involved. And Congress and state lawmakers also should invest in creative initiatives like plain language forms and online document assembly designed to make civil conflicts more simple and efficient so as to reduce the burden on overworked public lawyers as well as their clients.

I’m afraid there is more bad news. The ongoing political sequester in Washington already has jeopardized legal services all around the country. Last week, the Center on Budget and Policy Priorities announced that budget cuts “will likely force state and local housing agencies to cut the number of low-income families using House Choice Vouchers to afford housing by roughly 140,000 by early 2014.” This means tens of thousands of additional low-income legal clients may soon need help fighting for their rights in court — fighting to avoid homelessness — without the effective assistance of civil lawyers.

In Grand Rapids, Michigan, for example, local officials plan to cut funding for Legal Aid of Western Michigan by more than 40 percent this year and down to nothing next year because of the decline in federal grant money. And a spokeswoman from Legal Aid Services of Oklahoma offered this grim assessment on Thursday: “Our statewide program will lose about $250,000 this year due to sequestration. This comes after years of struggling to maintain our statewide presence despite funding cuts from every angle and the national recession. Plans for new equipment, salary increases, and filling vacancies are on an indefinite hold. Without more resource development, we are very likely to see service cutbacks by the end of the year.”

The right to counsel is about more than giving accused criminal defendants their due process in court. It’s also about helping tens of millions of Americans who are accused of committing no crime. There are more of these people than there used to be. And there is not nearly enough funding to help them. That, too, is a legacy worth considering half a century after the Supreme Court declared so famously that poor people deserve equal justice under the law.