Civil Justice for All

Executive Summary: Access to Civil Justice for All Should Be an Urgent Priority

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Project
Justice : Legal Services for the 21st Century
 

For millions of Americans, especially those living in poverty, hardship can take many forms: homelessness, unemployment, wage theft, burdensome debt, interrupted healthcare. Some are the results of unlawful practices, such as when landlords violate renters’ agreements or when lenders set onerous terms for loan repayments. Others can be the result of simple mistakes, oversights, and omissions: the challenges of navigating large bureaucracies like the courts or the U.S. Department of Veterans Affairs, or of filling out complicated and unfamiliar forms.

The legal protections intended to safeguard against these problems are often difficult to exercise, or hidden to anyone who does not have legal training or skills.

Lawyers are licensed to help their clients identify options for redress, including but not limited to litigation. They assist in negotiating disputes, interpreting contracts, and claiming healthcare benefits. Just as important, they provide expert advice that can help their clients achieve positive results without spending unnecessary time, money, and effort in court proceedings.1

Unfortunately, the Americans who most need legal assistance often do not receive it. Many cannot afford a lawyer. Some do not recognize that the challenges they face can be solved through an exercise of the law. While federal law provides a right to counsel for felony cases, juvenile delinquency cases, and all criminal cases involving jail or incarceration, the right to counsel in civil cases such as it exists is reliant on each state’s law, which is significantly more limited and varies from state to state. Many do not even know where to turn.

The result of this state of affairs is known as the civil justice gap: the great difference between the number of Americans who need civil legal assistance and the very few who receive help of any kind. According to one recent study, low-income Americans received adequate legal attention in only 14 percent of the problems they reported.2

The civil justice gap reinforces the inequalities that already undermine our society. At-risk populations—by income, race, gender, and education level—cannot receive justice if they cannot access even basic legal advice. The outcomes—evictions, family separations, job loss, and other hardships—are often catastrophic.

Despite the severity of its consequences, the civil justice gap remains nearly invisible, ignored, in part, because it is so complicated to solve. As shorthand, we often refer to the courts, lawyers, and others who help administer civil justice as a “civil justice system.” But there is no civil justice system. Instead, many vigorous yet uncoordinated institutions, organizations, and efforts are distributed unequally around the United States. These groups, which include underfunded and overworked legal aid programs in every state, work tirelessly to help the least fortunate among us, often succeeding against great odds.3

But access to legal services—the very basis of equal justice in America—should not be a matter of geography, timing, or luck. Equal justice is a right, not a privilege.

Individuals and families should receive the government benefits to which they are entitled. Tenants should be able to assert their rights under the law when they are not able to pay their rent. Victims of domestic violence should be able to obtain protective orders to shield themselves and their children from physical harm and mental anguish. People struggling economically should be relieved from debt when interest rates are exorbitant. And individuals and families facing a disruption of their economic stability should be able to use the law to protect themselves, steady their lives, and improve their prospects.

The COVID-19 pandemic has exposed many of the weaknesses in American civil society, from the real costs of income inequality, to the imbalances in our healthcare system, to the consequences of the digital divide. None of these challenges were new when the shutdown began in March 2020, but all were brought into stark relief. Many of these challenges will persist long after the crisis is over, as expectations about the role of government change, as people adjust to new ways of living, and as systems adjust to the new realities of distance work, distance education, and a greater variety of alternatives to the way things were done before the pandemic.

The American justice system was among the earliest institutions to be affected by the pandemic, as courts turned away all but emergency cases, transformed themselves into online platforms seemingly overnight, and suspended normal decisions like evictions until after the crisis passes. These responses, though necessary, created massive case backlogs and delayed important decisions in people’s lives. They also made it difficult for poor and low-income individuals in particular to obtain the rights and benefits to which they are entitled by law, exacerbating inequalities in the justice system that are already decades old.

In the first days and weeks, the pandemic caused a giant wave of novel justice problems related to healthcare. An even bigger wave soon followed as millions of people lost their jobs and ran out of money, defaulted on loans and other debts, and had to apply for government benefits such as unemployment. Some leaders of America’s legal services organizations regard the devastating, far-reaching consequences of the crisis as their biggest test ever.4

Even before COVID-19, civil justice organizations could not meet the enormous need for legal assistance among poor and low-income Americans. A 2017 study by NORC at the University of Chicago, funded by the Legal Services Corporation (LSC), found that 86 percent of civil legal problems reported by poor and low-income Americans received inadequate or no legal attention.5 Poor and low-income people facing problems with employment, housing, consumer debt, insurance, family matters, and other issues were often left at the mercy of overburdened court systems and poorly resourced government agencies. Even those discouraging numbers understate the supply and demand problem, however. The NORC study counted only problems for which poor and low-income individuals sought help. For a variety of reasons, poor and low-income Americans tried to find legal assistance for no more than 20 percent of the civil legal problems they faced.6

The civil justice gap also affects tens of millions of people who are neither poor nor low-income. The gap, as usually measured, applies to people who are eligible to receive free legal services from organizations that receive federal funding. The cutoff for federally funded legal services is income at or below 125 percent of the federal poverty levels set by Congress each year for individuals and families. (For 2020, the level was set at $15,950 for an individual and $32,750 for a family of four, with another $4,480 for each additional family member.)7 But that low cap for eligibility is itself a barrier to justice. Many people who earn far more than 125 percent of the poverty level cannot afford lawyers and do not qualify for free legal services from organizations receiving federal funding.

Some legal services organizations provide free representation to people who are in households with more than three times as much income: that is, to people or families at or below 400 percent of federal poverty levels. Before the pandemic, that threshold covered about 130 million, or two out of every five, people in the United States.8 As a result of the pandemic, tens of millions more Americans are eligible for free legal services. But additional tens of millions are not eligible. Not poor enough to receive free legal services, but suddenly unable to afford a lawyer, they may face an even higher barrier to justice than people with lower incomes.

For many, the present state of inequality in America means that access to civil justice is their last chance to avoid catastrophe. But the nation’s failure to provide equal access, and the resulting civil justice gap, has not held the public’s attention. While the movement to reform America’s criminal justice system is ongoing, inspiring, and influential, no parallel movement exists to reform American civil justice. That needs to change.

So, too, does the public’s understanding of the stakes. Civil justice is not widely seen as a matter of civil rights, but it should be. Many kinds of civil justice problems disproportionately affect racial minorities—for example, discrimination in housing and employment, as well as in immigration-related issues. In 2019, organizations funded by LSC served almost 750,000 people; 58.7 percent were people of color, including 28.3 percent who were Black. (In the overall U.S. population, however, people of color comprise only 39.9 percent, with Blacks accounting for 13.4 percent.)9 The protests that followed the killing of George Floyd in May 2020 highlighted other kinds of inequality and exposed racial disparities exacerbated by the pandemic: higher rates of unemployment, increased fatality to COVID-19, and greater vulnerability to eviction, among others. All of these subjects are covered under civil law.

A silver lining of the pandemic is the resilience and ingenuity shown by service providers. Just as healthcare professionals and teachers have deployed digital tools in telemedicine and remote education, courts and legal services offices have found new ways to reach people in need. Their shifts to an efficient use of technology prove that significant change can happen quickly. They mark clear paths toward better and more accessible civil justice and remind us that crisis brings opportunity—to see the world more clearly, to find new solutions to our problems, and to put those ideas into practice.

In 2015, the American Academy of Arts and Sciences initiated a series of activities that led to this report and its recommendations for closing the gap between the supply and the demand for legal services. The Academy began this effort long before COVID-19 or the George Floyd protests provided such grim context, and recent events have only amplified the urgency of a crisis a half-century or more in the making. This report calls for the legal profession, the courts, law schools, tech professionals, and partners from many other fields and disciplines to coordinate their efforts to provide necessary legal assistance to many more people in need. Past efforts to improve access to justice offer strong evidence that such an effort would have a profound effect on American society—measured in financial savings, greater trust in law and social institutions, and the safety and security of families and communities.

The project’s seven recommendations are:

First, and above all, dedicate a consequential infusion of financial and human resources to closing the civil justice gap, and seek a significant shift in mindset—extending beyond lawyers the duty and capacity to assist those with legal need—to make genuine strides toward “justice for all”;

Second, increase the number of legal services lawyers who focus on the needs of low-income Americans;

Third, increase the number of lawyers providing pro bono and other volunteer assistance, to supplement the corps of legal services lawyers;

Fourth, bring many new advocates—service providers who are not lawyers—into the effort to solve civil justice problems;

Fifth, foster greater collaboration among legal services providers and other trusted professionals—such as doctors, nurses, and social workers;

Sixth, expand efforts to make legal systems easier to understand and use through the simplification of language, forms, and procedures and the wider use of technology; and

Seventh, create a national team, or even a new national organization, to coordinate the efforts listed above, collect much-needed data on the state of civil justice, and help identify and publicize effective innovations that improve access.

With targeted investment and improved coordination, many more individuals and families in need would be able to navigate courts and administrative agencies, obtain assistance in advocacy, and receive the legal assistance that is now out of their reach. These investments should be in lawyers but also, crucially, in other problem-solvers who can help to address civil justice challenges. They should support a wide variety of collaborations, including frontline protectors in American life—doctors, nurses, and medical technicians; social workers and other social services providers; librarians and teachers; and many more. And they should be directed to make legal systems easier to understand and use, through the digitization and simplification of forms and procedures, the creation of online forums for resolving disputes, and other innovations.

Although many more lawyers are needed to serve America’s poor and low-income people, this is not just a call for more access to lawyers. It is a call for individuals and families to receive the benefits they are owed and to be able to assert the rights to which they are entitled. It is a call for access to fair procedures and equal opportunity for all to receive impartial judgment. And it is a call to fulfill the promise of a nation dedicated to the rule of law, for the young and the old, the rural and the urban, the well-established and the newly arrived, the fortunate and the indigent.

Endnotes

Project
Justice : Legal Services for the 21st Century
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