States’ Vital Role in Providing Civil Justice for Everyone
It's up to lawmakers to provide the funding that's needed and to back reforms that make the system work better.
It's high season for state legislatures, so it's high time to highlight their essential role in ensuring justice for all, not just for the few who can afford it.
If you are trying to save your home from a wrongful foreclosure, secure veterans' benefits which you've earned but been denied, or protect your family's safety from an abusive partner, you need legal help. For people who can't afford to pay a lawyer, civil legal aid offers vital help free of charge. Strong bipartisan support in Congress is holding firm against the Trump administration's call to eliminate the Legal Services Corporation, which administers federal funding. Fortunately, the recent omnibus appropriation even includes a modest increase in funding that ensures a baseline of support for civil legal aid in every state.
But here's the problem, and here's where the states come in: Today, in state civil courts across the country, three out of four people are there alone, without legal help to navigate complicated, life-changing situations. Every year, millions of Americans entangled in state civil-justice systems are at risk of losing their families, their homes or their livelihoods because they can't afford to pay a lawyer and free legal services are unavailable.
Federal funding is sufficient to meet only a small fraction of this need, as a recent study documents. And because there is such a wide disparity in funding for civil legal aid from state to state, where you live is a big factor in determining whether you can get help.
There are two important ways states should step up. Funding is one, for sure, as state legislatures across the country vote on their budgets. The other is reforms of the civil-justice system to make it more efficient for everyone and to eliminate antiquated, bureaucratic barriers that keep people from getting the information and assistance they need.
About that funding disparity from one state to another: Two states, Florida and Idaho, provide zero state dollars -- that's right, zero. New York is at the top of the scale, appropriating millions of dollars for civil legal aid. And substantial funding isn't limited to blue states. In Texas, for example, bipartisan legislative support and strong backing from the state Supreme Court now place it among the top third of states in legislative funding for civil legal aid.
When states that do a better job of funding legal aid, like Texas, have skin in the game, they have added incentive to make the civil-justice system work better for everyone. All 50 states, for example, now have laws requiring that court filing fees be waived for people too poor to pay. But reporting by ThinkProgress has uncovered troubling examples of judges failing to fairly apply this standard. That's not the only problem. Few states enforce uniform rules or provide simple forms in plain language. But in 2016, after the Texas Access to Justice Commission documented just such problems in several counties, the Texas Supreme Court amended its procedures to eliminate these most basic barriers to court access.
In too many cases, however, reforms are still needed to extricate the civil courts themselves from unjust practices. A recent report from the American Civil Liberties Union documents that the laws of 44 states permit a modern-day version of debtors' prison: The private debt-collection industry is using jail and the threat of jail to extract payments even when a debt is in dispute or when the debtor has no ability to pay.
In Maryland, another state in the top third of civil legal aid funders, legislators are considering just such reforms. The "Jared Kushner Act" would restrict landlords from using the civil court system to arrest tenants who are behind on their rent. The bill was so named by the lawmaker who introduced it after reporting by the Baltimore Sun revealed that the apartment-management firm owned by the family of President Trump's son-in-law had made the most aggressive use of this controversial practice of any landlord in the state.
Steps like those taken by Texas and being considered in Maryland are a good start toward greater fairness in the civil justice system. In many states, "access to justice" commissions like Texas's are mobilizing stakeholders and bringing forward practical solutions for both funding and system reform. Now it is state legislators' turn to deliver on the promise of justice for all.