Americans are famous for filing lawsuits left and right, but for litigants living in poverty, justice can be harder to find. When facing civil litigation, a massive gap in legal-aid services reflects and reproduces the very injustices that often drive poor litigants into the courts in the first place.
Unlike criminal proceedings, in which the indigent are provided with a public defender, in civil cases counsel is generally not guaranteed for those who cannot afford it. While federal authorities have begun exploring corruption issues in lower-level courts—especially scandals over municipalities running modern-day “debtors’ prisons” that impose predatory fines on the poor—there’s less public attention on the chronic scarcity of legal aid in civil litigation, including divorces, labor disputes, and other seemingly banal legal matters with complex social implications.
The 2016 Justice Index, a project of the National Center for Access to Justice (NCAJ), scores state courts on how they provide litigants with access to basic legal instruments, analyzing where and how the system is rigged against the vulnerable.
One measure is the proportion of legal-aid attorneys relative to the poor population. Currently, there are fewer than 7,000 legal-aid lawyers nationwide, roughly .64 attorneys for every 10,000 people in poverty. Depending on where you go to court, your access to counsel varies wildly: South Carolina has a ratio of just .24 legal-aid lawyers for every 10,000 poor people, but Washington State has 1.09 per 10,000. But across the country the availability of legal-aid attorneys is dwarfed by the ratio of 40 regular attorneys for every 10,000 people. In this deeply skewed legal landscape, while businesses go “forum shopping” to seek corporate-friendly judges, the poor by contrast see their legal fates dictated by class and geography. Meanwhile, civil legal-aid groups like Rural Legal Services must wrestle with budget cuts.
The index’s measures of language and disability access also show how social inequality and a lack of public investment intertwine to undermine constitutional rights. Immigrants with limited English ability—about 25 million nationwide—face an acute disadvantage. In 33 states, civil courts require the use of certified interpreters, and most train court staff or judges on working with courtroom interpreters. But policies for language accommodation vary state to state, and only about half of states require that interpretation be offered for free in housing-related and foreclosure cases. And many non-English speakers must face the judge without any lawyer.