Low-income Americans are blocked from fair legal representation

Jeremy Ney
8 min readJan 17, 2023

Justice delayed is just denied

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‍⚖️ You do not have the right to an attorney–or so it seems.

You can likely recite the phrase from memory that you’ve heard so many times in movies: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” 🎬 What they don’t say is that this is only true in certain circumstances, and it leads to injustice for millions of Americans.

If you are charged in a criminal case, which might lead to imprisonment, you are entitled to retain the legal counsel of a public defender. This counsel is appointed by the courts and provided by the state or federal government.

But if you are charged in a non-criminal case (i.e. a civil case), you need to be sufficiently poor to have the right to an attorney.

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💸 This threshold is remarkably low. You need to be living at 125% below the federal poverty level.

If you are charged in a civil case, you need to earn less than $16,100 annually to qualify for federal legal aid. If you’re in a home of two parents and two children, your household needs to be surviving on $33,125 annually (or $23 per person per day) to qualify for federal legal aid.

🧨 This problem is critical to understand right now as hundreds of thousands of immigrants are seeking legal representation. 🧨

Migrants seeking asylum have to apply within one year. With the influx of immigrants this past summer, the courts are already feeling overwhelmed as are the individuals who are worried they may need to defend themselves in a complex system not designed for them. America is now facing one of the largest court backlogs across major cities in its history.

Based on the statues guiding the federal grants that many legal aid organizations receive, it is illegal for these organizations to help undocumented people. This severely increases inequality in the court system.

In New York City, “There’s just not enough lawyers,” said Jodi Ziesemer, director of New York Legal Assistance Group’s immigrant protection unit.

In Texas, studies show that there’s only 1 legal aid lawyer for every 7,000 Texans who qualify. Due to a lack of resources, less than 10% of the civil legal needs of low-income Texans are being met. Lawyers can do pro-bono work, and law schools might try to install a

In the medical field, a doctor is required to help anyone that walks through the doors of an emergency room or urgent care regardless of whether the patient can afford that care. It’s part of their hippocratic oath. On the complete opposite side of the spectrum, arguably, the legal profession asks a person in survival mode to walk into the emergency room where they are handed an instruction booklet and told to operate on themselves. This isn’t a viable form of justice nor is it a viable pathway to success.

WITH LIBERTY AND JUSTICE FOR SOME

Let’s say you have been evicted from your home or you are being sued for unpaid credit card debt. You’d like to hire a lawyer to help defend you from losing your home or losing your access to credit. If you’re in this situation, chances are you’re already struggling to get by. But, if you are living alone and you earn $14,000 annually (or slightly above the 125% poverty threshold) you have to pay for your own lawyer to defend you in court.

📍 Mississippi, New Mexico, Arkansas, and Louisiana have the most families who would qualify for federal legal aid, yet often they don’t receive the support they need.

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Ronald was one of those in Louisiana who was lucky enough to get the support he needed from Federal Legal Aid. FEMA filed a claim against Ronald demanding that he repay disaster funds he had received after Hurricane Katrina. The problem was, Ronald had never applied for nor had he received any FEMA funds. They had seemingly confused him with another person. Nevertheless, that didn’t stop FEMA from seizing his tax refund and sending him a letter claiming he owed them an additional $8,000. Ronald was already low on funds and so turned to the Legal Services Corporation (LSC — more on them below) to have this cleared up.

57 million Americans don’t qualify for civil legal aid

57 million Americans don’t qualify for this federally funded legal support. If you get arrested and you don’t have enough funds to get a lawyer in a civil case, you will have to defend yourself or scrape the funds together to pay out of pocket for a lawyer.

📊 Of this group of 57 million Americans, nearly 70% actually had a civil legal issue in the previous year (close to 40 million Americans). Most said the problem “severely” or “very much” upset their lives”: they lost disability benefits, for example, and could no longer afford essential medical care; the state put their children in foster care while they were navigating their legal issues; or they fell behind on rent and were evicted.

The Only Lifeline that Exists: The Legal Services Corporation

🛟 The Legal Services Corporation (LSC) is the only lifeline for Americans who don’t qualify for legal aid under the intense prescriptive rules but also can’t afford a lawyer themselves.

LSC works by providing legal services directly to low-income Americans or by funding local organizations that can help provide that work. The Legal Aid Society is one such local organization that does a tremendous job of helping Americans get legal support who otherwise wouldn’t be able to.

As The Atlantic explains,

“Established by Congress in 1974 as a public nonprofit corporation, [LSC] funds more than a 100 civil legal-aid programs throughout the country. In most states, those funds account for between ⅓ and ½ of the organization’s budget; in some poorer states, like Alabama, LSC provides about 80% of the funding.”

Funding for LSC has fallen dramatically over the last 50 years, though the need for these services has risen. Source: Center on Budget and Policy Priorities

📜 While the 6th amendment provides “the assistance of counsel for his defense” in criminal trials, there is no such constitutional protection for civil cases. LSC has stepped in to provide this role, but it struggles to get the budgetary support that it needs that can come much easier for roles that are codified in the constitution.

Defending yourself is an option in courts, but it isn’t really a good for most (think: untrained person performing a medical procedure). Studies show that millions of Americans would benefit from legal representation to improve their outcomes in legal cases and in sentencing. In addition, self-representation is often bad for courts themselves since it slows things down and makes it hard for the justice system to do its job. It’s a lose-lose situation.

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🚨 Self-representation also falls disproportionately on Black Americans. A study of New York City Family and Housing Court revealed that 83% of those surveyed who were representing themselves were either African-American, Asian, or Hispanic and “had less education and lower income than New York City residents as a whole.”

🙋‍♀️ 70% of the cases that LSC represents are helping to defend women. These cases most often focus on women struggling to keep their children safe and keep their families together.

The Path Forward

Education is usually one of the first places to start addressing large social problems. We need to first increase awareness of the resources that do exist so that way when someone faces legal action he or she has the information they need to succeed. But after we improve education, there are three deeper steps that we can take to improve legal aid and inequality in America.

  • 💰 Increase funding for the LSC: 86% low-income Americans that had a civil legal case last year reported that they received inadequate or no legal help from any source. The Legal Services Corporation, the only lifeline for millions of Americans, received only only $465 million in federal funding in 2021, or $11.25 each for the 40 million Americans who qualified for federal legal aid and had a civil case last year. This is not nearly enough to support justice in our communities. LSC has had more funding in the past and has shown that more funding leads to more equitable outcomes. Education around the availability of LSC and access to resources are key. 53% of Americans don’t even know where to turn to find a lawyer or know if they could afford one. ➡️ You can donate here to support their work. ⬅️
  • ⚖️ Expand the categories for legal aid support: Use of LSC funds for federal legal aid is not allowed for issues like abortion, euthanasia or class-action litigation. We need to support people who are struggling with the full range of life altering issues. This has become even more important with the recent overturning of Roe v. Wade. If a low-income woman living on $8.50/hour salary is seeking legal aid regarding an abortion, she would not qualify for support. Now that abortion is not protected on the federal level, President Biden through Executive Order or Congress through legislation can at least make sure that legal aid for abortion can be protected for those who may struggle the most in navigating these challenging legal times.
  • 📝 Make healthcare and finance less litigious: 41% of low-income households have legal cases related to healthcare and 37% have legal issues related to consumer finance. This often relates to debt collection from health procedures or creditors. We’ve designed a system that catches low-income people in traps, from payday lending to pay-after-procedure healthcare. We need better consumer laws that help families stay out of these traps and give them the resources that they need if they do find themselves in trouble.

While I’m not a lawyer, I know a few things about policy and a few more things about data. Our legal system is far from perfect, and I know that there are decent people working to make the system function in a better way. But in the meantime, we need to make sure there are supports in place to help those who are caught in the quagmire of that imperfect system. Because right now, it’s women, it’s Black Americans, it’s low-income families, and people in the South who are suffering the most. Funding, framing, and fixing can get us a bit of the way there.

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Jeremy Ney

Former Federal Reserve policymaker, currently at Google, now writing about inequality at AmericanInequality.substack.com