Jurisprudence

Liberals Abandoned Civil Legal Aid. Now They Need to Bring It Back.

Police guard the Supreme Court building.
Andrew Caballero-Reynolds/AFP/Getty Images

Americans owe their fundamental right to legal counsel in criminal cases to a drifter who was buried in an unmarked grave.

Clarence Gideon was accused of stealing beer, wine, and soda, and five bucks from a cigarette machine and $60 from a jukebox at a bar in 1961. Denied a lawyer by a judge and too poor to afford one, Gideon defended himself in court and lost. He was convicted of breaking and entering and grand larceny, and received five years in prison. He hit the books in the prison library and realized he was robbed of his Sixth Amendment right to a fair trial and wrote, in pencil, on prison stationery, to U.S. Supreme Court Chief Justice Earl Warren about his case. He got a hearing.

The landmark case that followed, and soon freed him, Gideon v. Wainwright, redefined American justice. But more than 60 years later, Americans are still lacking a fundamental right to counsel: in civil cases.

By applying only to criminal cases—excluding civil cases, and initially, only applying to serious charges—Gideon left a big gap in our legal system. That hole ultimately left the nation’s largest legal aid group, the Legal Services Corp., to pick up the slack with about 5,000 attorneys serving 60 million low-income people who are eligible for federal legal aid. Of those, about 7 in 10 were in households that faced a civil legal problem in 2016.

That’s why a “civil Gideon” is needed to provide publicly funded attorneys for low-income people in cases like eviction proceedings, domestic violence, and public benefits disputes. Democrats typically put health care, domestic violence, and child welfare at the center of their policy agendas but rarely acknowledge the ways these areas are affected by civil litigation.

In the 200-plus pages of Hillary Clinton’s 2016 campaign book, not a word was devoted to civil legal aid. Coming from a former board chairwoman of the Legal Services Corp., the omission spoke to how far this important issue has fallen off of the progressive agenda.

It wasn’t always like this.

Civil legal aid was at the front burner of the War on Poverty, with President Lyndon Johnson tasking Sargent Shriver, then the Peace Corps director, with helming the Office of Economic Opportunity to expand legal services created by the Economic Opportunity Act of 1964. “This is a start in the war against poverty,” Shriver said. “For the first time in the history of this country poor people have a place and a way to express themselves.”

The Legal Services Program had been a scrappy program, with 247 legal aid offices, of which just 157 had paid staff at a cost of just $4.3 million in 1966. By 1968, Congress had appropriated $33 million for  the OEO across 49 states (North Dakota’s governor had rejected the grants). By 1975, legal services cases had nearly quadrupled to 1.2  million. Before 1965, no legal aid lawyer had ever argued before the Supreme Court. Within five years of the Legal Services Program’s founding, they brought more than 200 cases to the high court, winning most of them.

After President Richard Nixon clamped down on the Legal Services Program, he kept a successor program called the Legal Services Corp. alive. The new Legal Services Corp. would serve as an independent entity reliant upon congressional funding but with board members appointed by the president and subject to confirmation by the Senate. But when Ronald Reagan was elected president, he sought the LSC’s abolishment.

The LSC survived but was hollowed out—something that back then Democrats actually campaigned against. In 1984, Walter Mondale bragged that his party’s platform didn’t include ’”laundry lists that raid the treasury,” but that same platform excoriated Reagan for attempting to eviscerate the LSC, pointedly noting that in Reagan’s America, “you will only get as much justice as you pay for.” Four years later, Michael Dukakis and, in a notable departure from Reagan, his Vice President George H.W. Bush, each pitched themselves to the American Bar Association Journal as the more vigorous defender of legal aid. But Dukakis, in a nod to the New Democrats that would come to control the party by 1992, pledged to do all he could to strengthen the LSC “within the constraints of a massive federal budget deficit.”

Democrats dropped any pretense of advocacy for legal aid altogether in 1996, the same year that Bill Clinton and the Republican Congress eviscerated the federal guarantee of aid to the poor with a welfare reform bill that took aim at undocumented immigrants, and as yawning inequality only became more pervasive.

Civil legal aid is an issue that Democrats abandoned as part of their right turn in the 1990s but was never a culture war flashpoint and instead was a casualty of their desperate bid to run from the McGovernik label. Though it surely never cost any votes, it was dropped without a thought.

Today, there has been some revival of this issue on the progressive left. The steering committee of the Legal Working Group of the Democratic Socialists of America recently adopted a resolution endorsing a civil Gideon. Noah Baron, a member of the DSA’s legal working group, said, “Making free, publicly funded access to quality legal counsel available at no cost to natural persons is a fundamental social justice issue, cutting across all issues and identities.”

Housing has been a focal point in the fight for a civil Gideon. John Pollock, coordinator of the National Coalition for a Civil Right to Counsel, says that so many housing cases are decided at the same time in court they get nicknamed “the cattle call.”

“It’s not really a negotiation,” Pollock told me. “Tenants don’t have a lawyer and they don’t understand the process. … When people are evicted, […] that makes it that much harder for them to get safe and adequate housing later.”

While cities across the country are adopting steps toward a civil Gideon, in Congress, Massachusetts Democrat Rep. Joseph P. Kennedy III and Indiana Republican Rep. Susan Brooks formed the first-ever civil legal aid caucus. Kennedy says no one “should be forced to stand alone before a judge to argue for their freedom, the roof over their heads, or the safety of their family.” Brooks’ advocacy may have already yielded results for what she calls “life-changing” legal aid: Rather than eliminating the LSC altogether this year, Congress increased its budget by $25 million.

It’s worth noting that black women bear the brunt of the eviction epidemic and are thus disproportionately affected by the dearth of civil legal aid. And civil legal aid undergirds the Violence Against Women Act, providing protections for people under siege in their homes. While Democratic presidents dutifully increase funding for legal aid, they’ve missed an opportunity to champion it as a way to tackle inequality or to invest in it at the level the need demands.

If the left isn’t giving the issue its attention, the right is: It took the White House just 10 days in office to shutter the Justice Department’s Office for Access to Justice, which made legal aid more accessible to low-income Americans and had been described by civil rights groups as a “game-changer.” Then the administration cut funding for legal aid for migrant kids separated from their parents.

Gideon was eventually expanded to include the right to counsel in misdemeanor charges, but civil aid is still a fundamental right that too many are denied. As for Clarence Gideon’s unmarked grave? A local ACLU chapter eventually paid for a headstone for Gideon that quoted a letter he’d written to his lawyer: “Each era finds an improvement in law for the benefit of mankind.” It’s time for this generation of progressives to heed that call.