No person in the United States can be put on trial for their life or liberty, or indeed any criminal penalty down to the smallest traffic fine, without access to a lawyer to provide expert assistance. That principle was established by the 6th Amendment in 1789, although the actual right to counsel remained spotty until Clarence Earl Gideon’s case famously went to the Supreme Court in 1963. The Gideon ruling established that any criminal defendant in any court had a right to an appointed lawyer if they couldn’t afford one themselves.
But the 6th Amendment covers only criminal cases. Millions of Americans who can’t afford lawyers go to civil court every day unassisted and lose their homes, their children, their savings, their independence. Are their hearings fair? Let’s not kid ourselves. The essence of the Gideon ruling was that a criminal trial in which the defendant faced prosecutors without a lawyer was inherently unfair. If that’s true in criminal cases, how could it not be equally true of landlord-tenant, child support or other civil cases?
The Constitution doesn’t fill the gap. But bar associations, states and even cities and counties have long contemplated what’s known as “civil Gideon” — programs to improve the quality of civil justice by providing lawyers to unrepresented parties. Congress established the Legal Services Corporation in 1974 to boost nonprofit legal aid programs, although funding has gone up and down with changes in political fashion. In California, legislation written in 2009 by Mike Feuer (now Los Angeles city attorney) helps provide lawyers for more than 4 million people each year facing foreclosure, eviction, loss of child custody and similar jeopardy.
The results include fairer outcomes and more cost-effective justice, because good legal advice can lead parties to reach out-of-court settlements without tying up courtrooms or staff.
But the program provides at best a patchwork of representation. Most Californians who can’t afford lawyers in civil cases still go to court alone. When they get there, they are often flummoxed, not knowing what to do, where to go, or even how to behave. Judges can’t step in and offer advice.
So courts have tried to close the legal assistance gap in other ways. California courts spend $30 million on self-help centers and other forms of assistance where unrepresented litigants can get help filling out forms and filing papers. A project called All Rise for Civil Justice is trying to spread the word about possible solutions, including making court processes more user-friendly for the typical unrepresented litigant. The project also promotes online and other technological stopgaps.
These are all good steps that warrant funding and expansion, especially if they help people protect their rights without going to court at all.
But many people will still have to go to court. For their proceedings to be fair, they ought to have the benefit of a lawyer’s advice and advocacy.
Cities and counties are responding with funding and referrals on particular matters. Both the city and county of Los Angeles, for example, joined with nonprofits to create a fund to pay for legal representation for residents under threat of deportation. It’s a valuable resource in a region in which a quarter of the population immigrated from other countries, and at a time of stepped-up immigration enforcement.
But the program should lead policymakers to ask: If we are going to provide lawyers for some portion of the population at public expense, are we choosing the neediest or worthiest people? What about domestic violence victims seeking restraining orders? What about tenants facing eviction?
A New York program that provides free legal representation to tenants resulted in a sharp drop in wrongful evictions, according to a recent study. Newark, N.J.; Philadelphia; Washington, D.C.; Detroit and San Francisco are launching similar programs. Los Angeles, too, is considering a “right” to counsel for indigent tenants. Some of those jurisdictions extend the right to parties in child dependency and other civil cases. Many others provide a right to counsel in involuntary commitment cases.
Of course, “civil Gideon” is not a constitutional right, for tenants or anyone else. Funding for government-provided attorneys can be diverted when the next recession hits or political trends change. Representation for tenants this year could become representation for, say, domestic violence victims next year.