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Once again, America is riveted by a presidential election. Candidates have spent months naming the problems that ail us and detailing (or not) their plans to fix them. But some crises right in front of us remain largely unaddressed.
The overlooked crisis in our civil justice system is a prime example. Millions of Americans are fighting legal battles alone without any access to legal help, compromising the fundamental fairness of our society. Yet we hear nearly nothing about it on the campaign trail.
The latest data show that in three-quarters of potentially life-changing civil cases for issues like domestic violence or evictions, people do not have legal assistance, which puts them at enormous risk of losing their home, family or livelihood. Unlike in criminal cases, there is no guaranteed right to an attorney in civil cases for those who can’t afford one, as many people discover only after disaster strikes. Civil legal aid groups across the country are stepping up to help as many people as they can, but we don’t give them the resources to assist everyone in need. The sad result is that many simply fall through the cracks.
A surprising fact of this election is that of the Democratic candidates for the White House and their spouses, three of four dedicated parts of their careers to civil justice. Hillary Clinton was a civil legal aid lawyer in Arkansas and later chair of the Legal Services Corp., the federal funder of civil legal aid. Sen. Tim Kaine fought discriminatory housing policies as a pro bono attorney, advocating for families who couldn’t afford legal help to protect their rights. His wife, Anne Holton, was a well-regarded civil legal aid attorney in Virginia before becoming a judge.
This makes the deafening silence on civil justice from both sides of the ticket all the more perplexing. So far in the campaign, the diagnosis of the problem in our justice system has focused on “law and order” from the right and police shootings and mass incarceration from the left. Neither side talks about the civil legal system, where the stakes are often just as high as in criminal courts, yet our paltry support for civil legal aid puts families at risk.
Lack of legal help is at the heart of so many of the national crises that made headlines over the last year, yet our elected officials largely failed to connect the dots or propose the solutions we know would make a difference.
As lead poisoning irrevocably damaged the lives of children in Flint, Michigan, and around the country, we heard little about how families with young children are forced to navigate a bureaucratic maze to escape lead-contaminated housing, an almost impossible task without legal help, that leaves many in harm’s way.
When homelessness among veterans reached 40,000 nightly this year, short of the Obama administration’s goal of eliminating it, we didn’t hear about how veterans are often homeless because they don’t have legal help—to obtain mental health benefits or fight eviction, for instance—because they couldn’t afford a lawyer or didn’t know they had any rights under the law.
As the controversy over a Stanford University student’s light sentence for raping a woman unfolded, we heard nothing about how survivors of sexual assault and domestic violence are routinely unable to obtain legal help to hold their perpetrators accountable or to move on with their lives.
And as the housing crisis continues to grip cities across the country, few have discussed the critical disadvantage for people facing eviction or foreclosure without a lawyer, something their landlord or bank almost certainly has. Two-thirds of people without an attorney in eviction court lose their cases, often because they don’t understand their rights; with an attorney, two-thirds are able to defend their rights and keep their homes.
We must recognize civil justice as a problem worthy of national attention and action. The solution is clear: Expand access to civil legal aid for Americans in serious and potentially life-changing civil cases.
Research shows that Americans with legal help fare much better than those without it. For example, legal counsel for survivors can actually reduce domestic violence—even more than shelters or counseling—by as much as 21 percent. Civil legal aid also delivers important returns for taxpayers and communities by reducing other state costs stemming from unresolved legal problems. But despite strong evidence of their value, civil legal aid groups are still stretched far too thin and have to turn away two-thirds of people facing critical civil problems due to lack of funding.
We should be concerned that the civil justice crisis receives so little attention, particularly from those seeking the highest office in the land. The next president has the opportunity to take action: She or he can lobby Congress and sign legislation to increase federal funding for civil legal aid, which has declined by almost half since 1985 even as the number of Americans who qualify for it has grown dramatically.
We should be asking the candidates whether they prefer the status quo—where many go to court alone, unsure of their rights, and can lose everything—or whether they will fight to ensure justice for all.
Those of us in the legal community must also own up to the unsettling truth that we don’t do nearly enough to address this issue. Few are better equipped to hold our leaders accountable to reckoning with these problems, since we see the consequences every day in our own work, and state access to justice commissions in most states now provide a forum for our forceful advocacy and a goal to increase our contributions of dollars and time. Those we serve are counting on us to tell their stories and press our leaders to make a difference. It’s time we all stepped up.
Martha Bergmark is executive director of Voices for Civil Justice.