In recent weeks, both the House and the Senate have introduced bipartisan legislation that would begin to overhaul our nation’s broken criminal-justice system. These bills are nothing short of historic. But unless policymakers also invest in civil legal aid to support formerly incarcerated people who are reentering their communities, efforts to dismantle mass incarceration are doomed to fail.
For most returning citizens, release from a correctional facility doesn’t mark the end of their punishment. Individuals are commonly sent back into a community with only a few dollars, a bus ticket, and a few days’ worth of any needed medications. Many have no housing to return to—and living with relatives could put their families at risk of eviction due to draconian “one strike and you’re out” public-housing policies. Finding a job is unlikely to happen overnight—or even within the first year of release—because of the great challenge of securing employment if one has a criminal record. And in many states, people convicted of felony drug offenses too often go hungry as they are barred for life from accessing the meager assistance that income and nutrition aid programs provide.
To make matters worse, many returning citizens face debts in the tens of thousands of dollars due to child-support arrears. In many states, these payments accumulate while individuals are behind bars, even though they have little or no way to earn income. And in a growing nationwide trend, states and localities are closing budget shortfalls through tactics such as charging inmates “pay-to-stay” fees for incarceration, collection fees, and even fees for entering a payment plan to pay off their debts. With funding for public defenders falling drastically short, some courts are even charging public-defender fees for exercising one’s constitutional right to counsel.
In addition to trapping returning citizens in poverty, these financial debts can be a path to re-incarceration for those who are unable to pay. These and other obstacles to successful reentry are a big reason why more than two-thirds of formerly incarcerated individuals are rearrested within three years of release, many for crimes of survival. For example, M.H.—homeless, pregnant, and hungry—was rearrested for stealing two plums and three candy bars while on probation for another low-level retail theft offense.
So, what does all of this have to do with civil legal aid? Even though civil legal-aid attorneys do not represent defendants in criminal proceedings, they play a critical role in dismantling a system that fuels a vicious cycle of re-incarceration by continuing to punish people long after they have served their time.
For example, civil legal-aid attorneys help formerly incarcerated individuals secure affordable child-support orders and fight other unjust fines and fees, so that they are able to avoid modern-day debtor’s prison. They help people obtain the necessary documentation to replace lost identification—which is key to getting reestablished in society. Civil legal-aid attorneys also assist in getting driver’s licenses restored, which can be crucial to getting and keeping a job.
When employers illegally exclude jobseekers with criminal records, civil legal aid can help individuals challenge hiring discrimination. And many civil legal-aid attorneys also help people clear their criminal records, which improves their chances of finding employment.
Unfortunately, funding for civil legal aid has long fallen far short of what is needed to meet demand. As a result, for every client served by legal aid, a second person in need of services is turned away. Overall, less than 20 percent of low-income Americans’ civil legal needs are being met—a phenomenon known as the “justice gap.”
While sentencing and prison reforms are key aspects of building a fair and equitable criminal-justice system, these reforms are not enough. Reversing the nation’s decades-long trend of mass incarceration will also require removing unnecessary barriers to employment, housing, education, and more. This means we must ensure access to the critical reentry services that civil legal aid provides.
Earlier this year, the Senate Judiciary Committee passed an appropriations bill that—while far from sufficient to meet demand—would boost legal services funding for FY 2016 by $10 million. Meanwhile, House appropriators have called for slashing legal services funding by $75 million—a staggering 20 percent below the current funding levels. While Congress has passed a stopgap measure to keep the government funded until mid-December, as it continues to debate the budget it should ensure that any proposal includes adequate funding for civil legal aid. Additionally, Congress should take swift action to reauthorize and boost funding for the bipartisan Second Chance Act. This legislation allows the Department of Justice to award federal grants to government agencies and nonprofit organizations—including civil legal aid programs—that provide services to support reentry.
If the criminal justice reform legislation introduced this fall is enacted, many currently incarcerated individuals will have an opportunity to petition for reduced sentences or early release. Civil legal-aid lawyers will be important partners in helping these individuals transition back into our communities and get back on their feet. Neglecting the back end of mass incarceration—including by failing to adequately invest in civil legal aid—is a recipe for ensuring that most people will end up behind bars again, and that many of the gains we see from criminal-justice reform will be short-lived.