Legal Services Corp. and Equality Before the Law

By Kristina Forrey

“Justice for only those who can afford it is neither justice for all nor justice at all.”

― Texas Chief Justice Nathan Hecht

 

Justice Earl Johnson, Jr. called legal services “a precept of the social contract.” (Earl Johnson, Jr., Equality before the law and the social contract: When will the United States finally guarantee its people the equality before the law the social contract demands?, 37 Fordham Urb. L.J. 157, 159 (Feb. 2010). Most European countries have provided legal services to low income citizens since the late 1800s, whereas in the United States funding such services is still met with a question mark. (Id. at 160-61.) The Swiss Supreme Court, for example, determined in 1937 that “poor people could not be equal before the law” without having lawyers, and therefore the Swiss government was obligated to provide free civil litigation services for the poor. (Id. at 162-63). In other European countries, right to counsel has not been a question because that right is built into the constitutions or mandated by statutory law. (Id. at 164).

In the United States, the Legal Services Corp. (LSC) is a 501(c)(3) non-profit corporation established by Congress in 1974 to provide legal assistance to low income populations who otherwise would be unable to afford a civil attorney. (Legal Services Corporation, https://www.lsc.gov/). The LSC funds programs in all 50 states that provide attorneys to represent the poor in civil litigations and is constantly seeking donations to supplement the amount allocated to them in the federal budget. (Id.) However, in May 2017, President Donald Trump’s budget proposal eliminated the entire $375 million in LSC funding from the prior fiscal year. (Matt Ford, What will happen to Americans who can’t afford an attorney?, The Atlantic (Mar 19, 2017) https://www.theatlantic.com/politics/archive/2017/03/legal-services-corporation/520083/).

The negative response was immediate. News agencies, the American Bar Association (ABA), civil rights group, and legal services groups denounced the proposed budget. The ABA cited a multitude of studies that demonstrate how the benefits of LSC services far outweigh the monetary cost and extolled the importance of these services to vulnerable populations including veterans, the elderly, domestic violence victims, and disaster survivors. (http://www.abajournal.com/news/article/trump_budget_eliminates_funding_for_legal_services_corp) The issue of cutting the LSC budget rears up periodically. Ronald Regan failed to abolish the program in 1981 (Matt Ford), and the program was reauthorized by the 104th Congress with restrictions in 1995 (https://www.congress.gov/congressional-report/104th-congress/senate-report/392/1).

This fight is not a new one. In 1995 the Heritage Foundation, a far-right conservative group, wrote an attack article while the LSC was facing congressional review. (Peter Flaherty and Kenneth Boehm, Why the Legal Services Corporation Must be Abolished, The Heritage Foundation (Oct. 19, 1995) https://www.heritage.org/node/20680/print-display) The authors accuse the LSC of not providing legal services, of squandering federal funding with lobbying, and of promoting “homosexual, feminist, or environmental movements” rather than conservative values such as gun rights. (Id.) Less than a year later, the 104th Congress acknowledged the importance of LSC’s work to the country and renewed its charter through the Legal Services Reform Act of 1996. (https://www.congress.gov/congressional-report/104th-congress/senate-report/392/1) Congress noted that “in 1994, [LSC] assisted with 50,000 child support cases; 375,000 housing matters; 52,000 spousal abuse cases; and 251,000 divorce cases.” (Id.) Further, LSC spent its resources helping veterans, victims of natural disasters, and low income people at risk for bankruptcy. (Id.) The program is necessary, Congress observed, because there is only one LSC lawyer per 6,000 to 7,000 indigent clients whereas there is one lawyer per about 300 people of the rest of the population. (Id.) Today, conservatives continue to seek the end of this important program.

The argument for cutting the program stems from what Professor Weissman calls “suspicion and scorn” for the poor. (Deborah Weissman, Law as Largess: Shifting Paradigms of Law for the Poor, 44 Wm. & Mary L. Rev. 737 (Dec. 2002)). She proposes that there are two conflicting views regarding legal services. (Id. at 740). The “Rule of Law” view centers on themes of equality and justice, where no one should be left on the courthouse steps with justice just out of reach. (Id.). The second view of “Self-sufficiency” exalts independence and acting on one’s own interests as virtues. (Id.). We’ve heard this argument before. Poverty is the fault of the impoverished—they simply don’t work hard enough and merely need to “pull themselves up by their bootstraps.” This age-old fallacy blames the poor and assumes that they somehow deserve their circumstances. This could not be further from the truth.

“If you don’t have a job, where do you go from there? You hear people say ‘Pull yourself up by your bootstraps’, and you don’t even have shoes. You’re barefooted. What are you going to pull yourself up by? Our country owes every citizen of the United States of America a means of livelihood. Not a handout, but a way to make it.”

― Studs Terkel

 

When examining the psychological impact of poverty, psychologists have found that poverty tends to precipitate more poverty, not just for the individual but for their children and beyond. (Johannes Haushofer and Ernst Fehr, On the psychology of poverty, 334 Science 862 (2014), http://www.princeton.edu/~joha/publications/Haushofer_Fehr_Science_2014.pdf). Those who live in poverty are more likely to hold onto guaranteed income from a low-paying job than risk quitting for a better opportunity. (Id.) They have less ability to qualify for stable lending from a bank or credit union and are pushed by their circumstances and desperation to resort to payday lenders, merchants employing exploitative interest rates, or reliance on friends and family when things go awry. (Id. 863). Those subject to the stresses of poverty experience greater physical health consequences, increased likelihood of hospitalization for mental health, and increased drug and alcohol abuse. (Id. at 864). This causes a “feedback loop” of reoccurring circumstances that render it virtually impossible for a person in poverty to get free on their own.

The purpose of legal services is to provide that helping hand, to give the poor and indigent access to justice what would be otherwise unaffordable and unattainable. When I worked as a student intern at legal services, I walked in not really understanding what I was getting involved in. Over the course of that summer I saw first-hand how essential this program is for people to defend themselves. Without legal services, low income people would not have equal access to the law. Legal services is not just dollars-and-cents on a page. It represents the one and only lifeline for real people in real situations that stand to lose everything. It is unfortunate that a politician in Washington who has never struggled for a meal or a place to sleep can so blithely declare that this service is costing too much and not worth the money spent. What are we if we do not allow everyone equal access to the legal system? Legal services can defend the poor from the corrupt landlord, the unscrupulous mortgage company, and the abusive domestic partner. Eliminating legal services would allow those with money and no moral s to step upon the poor. The poor cannot get out of these circumstances without help from legal services because there are no “bootstraps” to pull up. There never were.