Is justice a luxury? It is easy to champion the concept as a universal right but what is often forgotten in such efforts is that fairness and equality before the law come at a price- one which many are unable to afford. Imagine finding yourself in an eviction hearing or seeking custody of your child from an abusive partner and having no one to help defend your interests. This is a harsh reality for many and exactly what underpinned Professor Stephen Wizner’s essay ‘Is Learning to “Think Like a Lawyer” Enough?’
Professor Wizner addressed the issue of insufficient legal services for low-income American citizens back in the late 1990s. He declared the situation a national crisis due to the scarce availability of legal services, a situation which has deepened with a rapidly widening justice gap. The term "justice gap" refers to the disparity between the legal needs of low-income citizens and the resources available to meet those needs. When compared to other Western nations, the United States has an exceptionally high poverty and income inequality rate. In fact, in 2022, the U.S. had the second-highest poverty rate among all OECD countries, at 18 percent. This rate is even higher among women, who are 35 percent more likely than men to live in poverty. The risk is highest for single mothers, with 35 percent living in poverty while raising their children. More alarmingly, 70 percent of America’s poor are women and children.
Why are women at a significant disadvantage? There are a variety of factors at play. Women in low-income employment are more likely to work in sectors such as hospitality and retail, which tend to offer lower wages in comparison to low-income male-dominated industries like construction. When women do work in higher paying fields however, they often face a gender wage gap and can earn less than their male colleagues for the same roles. For working mothers, additional challenges arise, including the lack of sufficient social safety support, high childcare costs, and the financial burdens associated with pregnancy and maternity leave. These issues may be exacerbated by the lack of paid family leave in many workplaces, a further limitation to women’s economic opportunities. Furthermore, U.S women in domestic violence situations face potential worsening of their economic standing, an average of 8 million days of paid work being lost annually as a result. Abusive partners may restrict their access to finances, making it difficult to gain financial independence. In some cases, women may need to take time off work for medical care or flee abusive environments entirely, which can result in job loss or longer-term financial instability. These issues are often more pronounced for women of colour, with the intersection of race and gender aggravating these challenges, with American Indian or Alaska Native women, Black, and Latina women experiencing the highest poverty rates.
How do these poverty rates create challenges for women seeking legal representation for civil legal matters? Civil cases involve non-criminal matters, such as divorce, child custody, domestic violence, eviction, job termination, the denial of healthcare and discrimination. The dilemma becomes clearer when we take into account the lack of a general right to legal counsel for these issues. In the U.S. Constitution, the Sixth Amendment, among other legal rights, guarantees criminal defendants in federal prosecutions the right to an attorney if they are unable to afford one.
Whilst civil issues may not be quite as theatrical or high-stakes as a murder trial, for a single mother struggling to provide a safe place for her children to sleep at night, it is life-altering. Why is she less entitled to legal representation than someone who commits a crime?
The landmark 1963 U.S. Supreme Court case of Gideon v Wainwright established the right to counsel in criminal cases for indigent defendants. Since then however, there has been a reluctancy by U.S. courts to extend this right to civil cases, where doing so would significantly enhance access to justice. For example, in 2011, the U.S. Supreme Court found no right to civil counsel in the case of Turner v Rogers, which surrounded a failure to pay child support where the plaintiff risked imprisonment. The presiding district civil judge of Jefferson County Alabama, Shera Craig Grant, importantly noted that the Court in Gideon failed to specify why a low-income civil defendant is not guaranteed legal counsel, but a criminal one is. She joins many in calls for a ‘Civil Gideon’ to bridge this gap for civil litigants, including Michigan State University’s Professor Brian Gilmore. In his article ‘Give Tenants Lawyers,’ he stated in relation to eviction hearings, “I deem an eviction the civil equivalent of capital punishment. The person or family that is evicted suffers civic death in society. They lose not only their housing but also their independence and dignity...”
This is where legal aid steps in to provide low-cost or free legal services for those who cannot afford them. Gilmore in his article added how he aided a young mother in avoiding homelessness in eviction proceedings. Her electricity and water were cut off after she reported unacceptable living conditions that her landlord refused to fix. He notes that with no lawyer “it is likely she would not have known her rights,” and that his law school clinic deals with nearly 25 clients weekly in similar situations. Law school clinics are law school programs that provide similar legal aid services as part of their pro-bono or public good initiatives. These are another avenue for indigent litigants who would otherwise be pro se litigants, representing themselves in complex legal procedures. Gilmore's example highlights the pressing need for women to have access to legal representation, due the considerable numbers that come from low-income households. According to the Legal Services Corporation (LSC), the majority of low-income households with children (58%) are headed by single women. For those women in domestic violence situations, the rate of partner violence is almost three times higher, with an additional 98% of households with reports of domestic violence experiencing at least one substantive civil legal issue. This critical need for legal aid access is illustrated in an example from LSC;
“Barbara, Pennsylvania. Barbara’s ex-husband was abusing their two children. She had a protection order against him for herself, but she could not get the authorities to believe her about the child abuse. She spent all of her savings and her parents’ savings to pay for a private attorney to help her case, but she eventually ran out of money. Meanwhile, the abuse continued. Eventually, a women’s crisis shelter connected Barbara to Neighborhood Legal Services Association, who helped her successfully build a case to demonstrate the abuse and protect her children.”
This case highlights the critical role that legal aid organizations play in supporting vulnerable women and other low-income citizens. While clinics like Gilmore’s are invaluable, the reality is that many low-income women still lack sufficient access to legal help. Wizner points out in his article that there are not enough lawyers providing these services to meet the needs of those who require them. The American Bar Association reported on this short supply, finding that of the 1.3 million lawyers in the U.S. there were only three for every 10,000 people in poverty. This can explain why low-income citizens did not receive enough or any legal help for 92% of their problems in the past year. As a result, more people are forced to become pro se litigants, which can drastically reduce their chances of success.
Evidently, increased funding for legal aid is necessary. In addition to this, there has been recent action taken to introduce a ‘Civil Gideon,’ most recently in California’s June 2024 initiative. There are no details in the bill regarding which cases will qualify for free aid, with these eligibility specifics being left to the Judicial Council, but nonetheless this is a significant step in addressing the gap and time will reveal its effectiveness in enhancing access to legal representation.
To echo Stephen Wizner’s call to integrate virtue into legal education, a potential solution to this problem may be to start at the beginning, with law students, and enhancing teachings on the importance of civic responsibility. Undeniably, some form of action is required to bridge this justice gap, both within America and beyond. Everyone deserves equal treatment and fair representation before the law, regardless of their income. As important as it is to think ‘like lawyers,’ we also must remember to think ‘like human beings’ in our calls for justice and equally advocate for a strengthening of its accessibility.
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