The Legal Representation Gap

Our constitution guarantees legal representation to individuals accused of crimes, as it should. It does not, however, extend that right of representation to cases that fall under the auspices of civil law—cases concerning issues like housing, predatory lending, consumer scams, domestic violence, and social security.  This would not be a problem if individuals representing themselves could realistically navigate our legal system. However, the increasingly byzantine nature of civil legal proceedings renders self-representation a frustrating and potentially dangerous gamble. This fact, combined with the exorbitant costs of legal representation means that vulnerable individuals often forgo the opportunity to right the wrongs perpetrated against them.

The United States Department of Justice reports that low-income individuals are less than half as likely as those with moderate incomes to seek legal help. The impact of this phenomenon is devastating. DOJ statistics reveal that legal representation more than doubles an individual’s chance of keeping their home in an eviction case and that “the only public service that reduces domestic abuse in the long term is women’s access to legal representation.” The disadvantage that the poor, vulnerable, and disabled face in civil court renders them comparatively easy targets for scammers, abusers, corrupt employers and neglectful landlords.

In the first chapter of Isaiah, the Old Testament prophet brings a chilling indictment against the people of Israel. He writes that God despises the Israelites’ outward signs of devotion--their religious services, and offerings--and that he turns a deaf ear to their prayers. On a first reading, it is natural to wonder what God’s people could have done to alienate themselves so completely from their King. Isaiah offers an answer to that question, citing a plethora of injustices perpetrated by the powerful against the poor and vulnerable. In his words, “They do not defend the cause of the fatherless; the widow’s case does not come before them.” Those charged with carrying out justice take bribes, make corrupt deals, and take advantage of the weak. Rather than worshiping God and caring for his people, the powerful worship themselves and abuse their fellow image-bearers.

God’s wrath and judgment, however, are not the only themes in chapter one of Isaiah. God issues a call to repentance and a promise to restore and reconcile his people to himself. He also makes a demand of them: “Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the cause of the widow.” Clearly, access to justice for the poor matters to God—so much so that denying them justice signifies a devastating rift in the relationship between God and his people.

As the successors of the nation of Israel—equally the people of God, we too should ask ourselves what we are doing to seek justice, defend the oppressed, take up the cause of the fatherless, and plead the cause of the widow. We can pursue justice for the poor in many ways, but one important way is by understanding our formal civil justice system and encouraging a variety of institutions to work together to ensure that the poor can have access to legal services.

Public justice calls us as Christians to ask what the right roles are for government, for individuals, and for civil society organizations to advance justice, especially for the marginalized members of our communities. In the case of society’s most vulnerable, government must play a role to ensure that access to civil legal representation is available to low and moderate-income individuals. The American civil justice system has reached a level of complexity that renders it virtually inaccessible to individuals without representation--particularly elderly, educationally disadvantaged, and disabled members of our society.

In 1974, President Richard Nixon established the Legal Services Corporation (LSC), a Congressionally funded entity charged with coordinating and funding civil legal aid for the poor. At its initiation, Nixon outlined his vision for the organization:

  Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.

Today, long after Nixon’s presidency collapsed in scandal, the Legal Services Corporation lives on, though with dwindling capacity to meet the needs for which it was created. I recently had the opportunity to shadow two attorneys with Legal Aid, a major beneficiary of the LSC, as they advocated for clients in domestic violence and social security hearings. While the attorneys clearly had far less time than they would have liked to prepare for court, they remained consummate professionals. They treated their clients with dignity and careful attention, noting even the most seemingly trivial elements of each case and instilling their clients with a palpable sense of confidence as they prepared to testify.

Federal funding for civil legal aid of this kind has faced significant political opposition throughout its history, originating from both sides of the political spectrum. The Reagan administration unsuccessfully attempted to defund LSC entirely, and the Clinton administration allowed the program’s funding to be cut by approximately 30 percent. In 2015, the LSC’s budget was decreased by an additional 20 percent, and President Trump has made clear that his administration plans to make drastic budget cuts for non-military expenditures.  We should encourage the administration to, at a minimum, maintain current funding levels for LSC.

The constitutional framework of our government offers credence to the arguments of those who advocate a larger role for state and local governments in the provision of such aid. However, we must ensure that in our efforts to better distribute responsibility for the provision of such services, we do not forget the pressing needs of those who depend on its consistent availability.

A public justice framework is one that seeks to engage multiple social spheres in helping shape a solution. While we reject the notion that government should not play any role in funding these services for the poor, we also believe that government alone does not bear the entire responsibility. So, while we advocate for the government to adequately contribute to finding legal assistance for the poor, we should also look to other civil society organizations. Christian legal aid provides free legal clinics, as do many Bar Associations, law school clinics, secular and religious legal services and social services agencies. In addition, many private law firms and attorneys devote some of their practice to pro-bono cases. Thus, the solution to this complex challenge is multi-dimensional and needs the academic, non-profit, faith-based, professional association, and business sectors, as well as government, to play a role in ensuring justice for the most vulnerable.

As Christians, God’s call to defend the oppressed extends to us. There are many ways for us to become involved in that mission. First, we can financially support civil legal advocacy organizations. Second, we can vote for public officials who value access to justice for the poor and support legislation that makes it a priority. Finally, those of us with legal careers in mind can consider civil legal advocacy on a full time or pro bono basis. The need for civil advocacy is a pressing challenge for our nation and an opportunity to pursue a cause close to the heart of God.

-Mackenzie Harmon is a student at Covenant College majoring in international studies.