A Civil Right to Counsel: THE HISTORY
reproduced with permission of the artist
At some point, everyone has heard something like this on TV: "You have a right to a lawyer. If you cannot afford one, one will be provided to you." In 1963, in the celebrated case of Gideon v. Wainwright, the Supreme Court said that individuals charged with serious crimes have a right to counsel. The Court later expanded the right to juveniles charged with delinquency offenses and people charged with misdemeanors.
Yet many people do not realize that this broad right only applies to criminal cases, not civil cases; the Supreme Court's approach to civil cases has been considerably less protective. As a result, the right to counsel in civil cases depends on what state you're in and what type of civil case it is. Overall:
- No state guarantees a right to counsel for a person in cases involving access to health care, and few guarantee a right to counsel when facing eviction;
- Very few states provide a right to counsel for domestic violence or private custody proceedings;
- Fewer than half the states guarantee counsel for those being jailed for failing to pay child support or a criminal fee/fine.
This has contributed to the ever-growing justice gap and actually worsened the indigent defense crisis. In fact, the United States now lags far behind the rest of the world when it comes to the right to counsel in civil cases.
Why People Need Counsel and have trouble getting it
Having a lawyer in critical civil cases can make the difference between keeping a home or losing it, obtaining protection from domestic violence or suffering injury, having sufficient food or going hungry, keeping a family together versus having it split apart, or remaining free versus being incarcerated.
But the ultimate consequences of losing these types of civil cases extend beyond these immediate effects. When people lose their homes or children, or experience domestic violence that they cannot stop, they often have problems with school and employment, experience psychological problems, and are forced to use publicly-financed medical care, shelter and benefits systems. Thus, not only does losing the case affect them in multiple ways, but all of society bears the cost in a way that is significantly more expensive than paying for counsel in the first place. Moreover, families of color, families headed by women, children and the elderly suffer these consequences disproportionately.
There is growing evidence that providing counsel not only makes outcomes more accurate and just, but may actually help the states save money. The right to counsel can also be an excellent tool for fighting poverty. Judges have also written about why there should be a right to counsel.
Unfortunately, most low-income people facing serious civil legal problems in America cannot afford legal representation. The legal aid programs are chronically understaffed and can meet only a small percentage of the need; about 80% of the legal needs go unmet. And while pro bono services from the private bar have grown in recent decades, they cannot begin to fill the void.
About The NCCRC
The National Coalition for a Civil Right to Counsel (NCCRC), organized and funded in part by the Public Justice Center, is an association of individuals and organizations committed to ensuring meaningful access to the courts for all. Founded in 2003, our mission is to encourage, support, and coordinate advocacy to expand recognition and implementation of a right to counsel for low-income people in civil cases that involve basic human needs such as shelter, safety, sustenance, health, and child custody.
At present, the NCCRC has over 600 participants and partners in 45 states (see our interactive map's "NCCRC Presence" view to see where they are), all of whom are committed to exploring how the right to counsel in civil cases can best be advanced in their particular jurisdiction.