Access to Justice

By Alan W. Houseman, Executive Director, CLASP (the Center for Law and Social Policy)

Civil legal aid helps low-income people navigate various civil matters like housing evictions, home foreclosures, predatory lending, child support, and domestic violence. It also helps people access government benefits like Social Security, disability, unemployment insurance, food stamps, TANF and health insurance. Without the services of a lawyer, low-income people with civil-legal problems may have no practical way of protecting their rights and advancing their interests.

Civil legal aid in the United States is provided by approximately 500 independent, staff-based service providers, including 135 programs funded by the Legal Services Corporation (LSC).  These programs are non-profit entities that deliver civil legal aid by full-time attorneys and paralegals who provide advice, brief service, court and hearing representation, community legal education, economic and community development, and policy advocacy. 

These core providers are supplemented by approximately 900 pro bono programs affiliated with state and local bar associations, over 200 law school clinical programs and several hundred self-help programs. 

Total funding for civil legal aid is approximately $1,375,000,000. Funding comes from a variety of sources. The largest single funder is LSC. However, state sources provide the largest amount of overall funding. These include increases in filing fees, general revenue appropriations and Interest on Lawyers Trust Accounts (IOLTA). (IOLTA programs distribute the pooled interest of client trust funds to civil legal aid programs and other access-to-justice initiatives. Client trust funds contain short-term deposits of clients held by lawyers in interest-bearing accounts, which are used to pay court fees, settlement payments, and similar client needs.)

By Vanita Gupta, Deputy Legal Director, ACLU, and Steve Hanlon, Partner, Holland & Knight

Earlier this year, the Orleans Parish Defenders Office (OPD), which represents more than 80 percent of criminal defendants in Orleans Parish and handled 30,000 cases in 2011, faced a particularly severe fiscal crisis. The office fired a third of its staff and effectively slashed pay for those who remained. Private contract lawyers handling death penalty and conflict cases stopped getting paid. Entire divisions of the office were cut. Hundreds of criminal defendants were left with no lawyer to represent them, though their lives and liberty were on the line. Funding for indigent defense in New Orleans relies, in part, on collection of traffic fines, as well as court fees paid by indigent defendants who plead guilty or are convicted at trial. In recent months, the office has been able to rehire a handful of lawyers after lawmakers supplemented the indigent defense budget by increasing the indigent defender fee by $10 and seatbelt violations by $20. And two weeks ago, OPD filed a lawsuit alleging that New Orleans Traffic Court has shortchanged indigent defense between $2.4 million to $6.7 million since 2007. 

The persistent underfunding of indigent defense systems in the United States for the last 50 years has occurred on the watch of our state courts and our profession. As we prepare to commemorate the 50th anniversary of Gideon v. Wainwright on March 18, 2013, all of us must know that when this chapter in the history of the American justice system is written, it will not be a pretty picture.

After first recognizing a right to prospective injunctive relief for grossly underfunded public defender systems in 1989, the federal courts abdicated their responsibility to enforce the Sixth Amendment, citing abstention concerns. As a result, since 1992, almost all significant systemic challenges to underfunded public defender systems have occurred in state courts. The principal goal of this first generation of state court litigation was to increase funding for indigent defense systems around the country. In better economic times, this goal was difficult, to say the least, since legislatures and occasionally the executive branch, rather than the courts, appropriate funds for state agencies. The task is Herculean during the current budget crisis, when state courts are turning to desperate measures to generate revenue, such as aggressively collecting fines and fees off the backs of the poor.