Lawyerless Justice: Stagnating the Development of Law and Dismantling Civil Rights

Lawyers are the most dynamic and critical component of America’s justice system. As the enforcer of constitutional rights, a lawyer assumes far-reaching levels of importance in daily life.[1] Law has no meaning without lawyers. When Congress is slow to act, attorneys respond to national changes swiftly by protecting their clients. They ensure that growing threats to democracy, economic liberty, and basic rights are immediately put to rest. However, today’s lawyers are almost entirely exclusive to the elite. The cost of lawyers has ballooned by over 41% since 1986.[2] As a result, a staggering 92% of low-income Americans do not have access to civil lawyers.[3] This drives a dangerous phenomenon—lawyerless justice—where poor, uneducated Americans are ambushed by wealthy, well-versed lawyers.

When these poor individuals are unrepresented in civil court, American law cannot respond to their ever-changing challenges. The law cannot keep up with poor Americans’ most pressing problems—eviction, immigration, and abortion—if there are no lawyers to defend them.

Where Gideon Fell Short

In Gideon v. Wainwright (1963), the Supreme Court unanimously granted a right to counsel for all people.[4] Yet, the ruling only covered criminal issues. For civil issues—abortion, eviction, divorce, and immigration—poor individuals are denied free, public lawyers. By ignoring civil law, Gideon revoked the ability of low-income Americans to use justice systems and enjoy civil rights. There is thus no surprise that America ranks 126th in the world on its accessibility to civil justice.[5]

Suspending the Development of Law

The lack of free civil counsel could not persist at a more terrifying time. With Roe v. Wade overturned, 22 states are set to criminalize abortion.[6] Enforcement of these bans will almost certainly intrude on privacy. For example, prosecutors may interrogate women about drug use; police may root through trash bins for liquor bottles, search text messages with intimates, or even coerce medical officials.[7] To legally combat these civil privacy violations, poor women need free civil lawyers. After all, very few lay people understand the complexity of Fourth Amendment jurisprudence. Regardless of if they received an abortion, poor women are stripped of their right to privacy without lawyers to defend them. Lawyerless justice effectively stagnates American law, preventing it from responding to the rising tide of privacy breaches.

In a post-pandemic world, evictions are growing precipitously because of exorbitant rent prices.[8] Removing people from their houses is known for its adverse impact on health, child education, homelessness, and unemployment.[9] Over 90% of tenants facing eviction cannot afford lawyers.[10] So, while wealthy landlords can access vast legal resources to win eviction cases, 90% of poor tenants facing eviction have no legal representation. When poor Americans almost always lose their eviction cases, the law tips heavily in favor of rich landlords. American law cannot answer these swelling subversions of economic security because there are no lawyers to protect the victims.[11] In aggregate, millions of families are thrown out of their homes and pushed into poverty because of America’s static justice system.

Between 2020 and 2021, the number of immigrants in detention centers increased by over 80%.[12] After being detained, immigrants are taken to court to determine if they should be deported. However, 70% of immigrants—adults, children, and non-English speakers—cannot afford lawyers in immigration court.[13] Lawyers make a massive difference, as immigrants with lawyers are four times more likely to be released from detention than those without lawyers.[14] Lawyerless justice enables Immigration and Customs Enforcement (ICE) to effortlessly win cases, deport immigrants, and suspend them in detention. Owing to the absence of free civil lawyers, immigrants are regularly deported back to repressive homes or deprived of their rights in detention centers.

The privileged party — the rich landlord, abortion prosecutor, and ICE lawyer — will nearly always win against the poor, unrepresented American. If poor Americans continue to lose their cases, the law can never attend to their accumulating challenges. Without free civil lawyers, the law is not dynamic but single-sided — locked in one direction that reinforces economic privilege.

Areas for Reform

To bridge America’s justice gap, Congress must grant a national right to civil counsel. This right would build off of Gideon v. Wainwright, providing public lawyers to poor Americans in civil cases. Congress can take a page out of New York City’s playbook. In 2017, the city shifted its gears of justice, creating a program to provide free civil lawyers to all low-income residents.[15] During the program's first year, 84 percent of poor tenants who received a lawyer (21,955 individuals) remained in their homes.[16] Such success can be mirrored on the national level by establishing a national right to civil counsel regime, and the beginning of this regime is on the horizon. “The Recognizing the Right to Counsel in Civil Proceedings Act”, introduced to the House Judiciary Committee in 2020, will assemble state-wide efforts to guarantee free civil counsel to poor Americans. But this bill has remained tabled and ignored for two years. The growing fissure in America’s judicial system deserves Congress’ attention. Legislators must direct their focus to rethinking America’s civil justice system and passing “The Recognizing the Right to Counsel in Civil Proceedings Act”.

Upon entering the Supreme Court, litigants and justices read, “Equal Justice Under Law.”[17] Yet, American law has not lived up to this four word promise that is chiseled into the highest court of our land. In nearly 75% of all civil cases, one or both parties are lawyerless.[18] As privacy, economic security, and basic livelihood are increasingly under siege, lawyers are all the more essential. One lawyer can go a long way, extending key rights to poor Americans that cannot keep pace with new, dangerous problems. Only by rebalancing the scales of justice can America adapt to the challenges brought by our quickly changing society.

References

[1] Maxwell, D. F. (1956, October). The Importance of Lawyers. Hein. Retrieved November 25, 2022, from: https://heinonline.org/HOL/LandingPage?handle=hein.journals%2Fstudljer2&div=7&id=&page=

[2] Legal Services Inflation Calculator (2022). Alioth LLC. Official Data Foundation. Retrieved November 25, 2022, from: https://www.in2013dollars.com/Legal-services/price-inflation/1980-to-2022?amount=1000

[3] Rauscher, C. (2022, April 29). Low-income Americans Face Immense Justice Gap According to New Legal Services Corporation Report. Legal Services Corporation. Retrieved November 25, 2022, from: https://www.lsc.gov/press-release/low-income-americans-face-immense-justice-gap-according-new-legal-services-corporation-report

[4] Gideon v. Wainwright, 372 U.S. 335 (1963)

[5] Pollok, J. (2021, December 10). U.S Rank on Access to Civil Justice in Rule of Law Index Drops to 126th out of 139 Countries. Civil Right to Counsel. Retrieved November 25, 2022, from: http://civilrighttocounsel.org/major_developments/217

[6] Abortion Policy in the Absence of Roe. Guttmacher Institute. (2022, November 9). Retrieved November 25, 2022, from: https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe

[7] Descano, S. (2022, May 31). My Governor Can Pass Bad Abortion Laws. But I Won't Enforce Them. The New York Times. Retrieved November 25, 2022, from: https://www.nytimes.com/2022/05/31/opinion/prosecutor-abortion-virginia.html

[8] Campisi, N. (2022, August 26). One Year After Eviction Moratorium Ends, Renters Face Affordability Crisis. Forbes. Retrieved November 25, 2022, from: https://www.forbes.com/advisor/personal-finance/rental-housing-costs-rise/

[9] Collinson R. (2018, October). The Effects of Evictions on Low-Income Households. University of Notre Dame. Retrieved November 27, 2022.

[10] Schultheis, Heidi. “A Right to Counsel Is a Right to a Fighting Chance.” AmericanProgress.org. 2 October 2019, https://www.americanprogress.org/article/right-counsel-right-fighting-chance/. Retrieved November 27, 2022.

[11] Sabbeth, K. A (2021, March 18). The Gender of Gideon. UCLA Law Review, Forthcoming. Retrieved November 25, 2022.

[12] Gupta, N. (2021, July 28). Roadmap To Dismantle The U.S. Immigration Detention System. Immigrant Justice. Retrieved November 25, 2022, from: https://immigrantjustice.org/research-items/white-paper-roadmap-dismantle-us-immigration-detention-system

[13] The Right to Counsel. American Civil Liberties Union. Retrieved November 25, 2022, from: https://www.aclu.org/sites/default/files/field_document/right_to_counsel_final.pdf

[14] Eagly, I. (2016, September 28). Access to Counsel in Immigration Court. American Immigration Council. Retrieved November 25, 2022, from: https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court

[15] Mironova, O. (2022, March 7). Right to Counsel Works: Why New York State's Tenants Need Universal Access to Lawyers During Evictions. Community Service Society of New York. Retrieved November 25, 2022, from: https://www.cssny.org/news/entry/right-to-counsel-new-york-tenants-lawyers-evictions

[16] Universal Access to Legal Services (2021). Office of Civil Justice. New York City Human Resources Administration. Retrieved November 25, 2022.

[17] The Court and Constitutional Interpretation. Supreme Court of the United States. Retrieved November 27, 2022, from: https://www.supremecourt.gov/about/constitutional.aspx

[18] Bookman, P. (2022, July 5). Lawyered and Lawyerless Civil Procedure in State Courts. State and Local Government Law Retrieved November 25, 2022, from: https://www.sloglaw.org/post/lawyered-and-lawyerless-civil-procedure-in-state-courts