The “Access to Justice” Gap
September 28, 2022 - By: Isabelle Weber
“Access to justice” is broader than access to legal assistance.1 Rather, access to justice “requires accounting for the experiences of all people, not only those who are low-income or have experienced a civil justice problem.”2 Additionally, the justice gap is often described as the “difference between the civil legal needs of low-income Americans and the resources available to meet those needs.”3 However, studies show that more than low-income Americans experience a lack of civil legal help. In some criminal proceedings, defendants may even be guaranteed the right to a lawyer’s assistance. However, not everyone is entitled to the same constitutional right. Specifically, the right to counsel attaches only to indigent defendants who are charged with a crime facing potential time in jail.4 Unfortunately, no such right to counsel exists in civil proceedings.
Without a right to counsel in civil proceedings, legal aid organizations were created to assist low-income Americans in their civil cases. The Legal Services Corporation (LSC) is the largest funder of civil legal aid for low-income Americans, distributing more than 90% of its funding to 132 independent nonprofit legal aid programs in the nation.5 In Ohio, such funded programs include Legal Aid Society of Greater Cincinnati, Ohio State Legal Services, Legal Aid of Western Ohio, Inc., Community Legal Aid Services, Inc., and the Legal Aid Society of Cleveland.6
The LSC conducted a 2022 Justice Gap Study used 2021 data to examine low-income individuals’ experiences (or lack thereof) in receiving legal help for their civil legal problems.7 Additionally, the study compares low-income individuals’ experiences to higher income individuals’ experiences. For the study, “low-income” meant incomes at or below 125% of the federal poverty level, or $16,100 for a single-person household in 2021.8 In addition, higher income included individuals at or above 400% of the federal poverty level, or $51,520 for a single-person household in 2021.9
As expected, no right to counsel in civil proceedings affects lower-income individuals the most. Private attorneys are expensive; therefore, lower-income individuals who cannot afford a private attorney have only one option for legal help: to hope legal aid can help them. According to the LSC’s 2022 Justice Gap Study, “low-income Americans do not get any or enough legal help for 92% of their substantial civil legal problems.”10 Importantly, this statistic is based on individuals at or below 125% of the federal poverty line. This statistic does not include individuals above 125% of the federal poverty line and who still experience cost barriers to accessing civil legal help.
In the past year, about 74% of low-income households have dealt with at least one civil legal problem.11 Further, 39% experienced five or more problems and 20% experienced ten or more problems.12 Despite the prevalence of civil legal problems, these individuals only soughtlegal help for 1 out of every 4 problems.13 Almost half, 46%, of the people who did not seek legal help stated the reason for doing so was the cost of obtaining help.14 Lastly, the most common types of legal problems individuals encountered included consumer issues, health care, housing, and income maintenance.15
Individuals with higher incomes report fewer roadblocks to receiving legal assistance.16 Specifically, these individuals are more likely to seek legal help, less likely to go without any or enough legal help, and more likely to be confident that they could find and afford a lawyer, if needed.17 Ultimately, individuals with higher incomes are more likely to believe the civil legal system will protect and enforce their rights.18 By comparing this data to low-income individuals, it becomes clear that money is a significant factor affecting experiences within the civil legal system.
Despite organizations offering free legal assistance to low-income individuals, the study’s results show there are still significant issues with these individuals accessing help. Unfortunately, most low-income individuals will not get any help or enough help for their civil legal issues.19 Although cost is a barrier, it is not always the reason individuals do not receive legal assistance. Another barrier, through no fault of their own, is the legal aid organizations’ limited resources and time. Because of this barrier, not every qualifying individual will receive help from legal aid. In 2021, LSC-funded organizations received about 1.9 million requests for help.20 However, 49%, or 1 in every 2 requests for assistance were declined because of limited resources.21 Additionally, legal aid organizations are not always able to fully help individuals who they do agree to represent.22 Specifically, resources are available to fully resolve only 56% of problems.23 These significant statistics represent that, in total, LSC-funded organizations are unable to provide any or enough legal help for an estimated 1.4 million, or 71%, of civil legal problems for which help is requested.24
Importantly, these statistics only examine income level, and do not showcase the impact that additional factors, such as race, gender, age, case type, and location (metro, rural, etc.) have on accessing civil legal help. Another study used data from a 2020 survey to gather information on individuals’ legal problem experiences to better understand how those individuals resolve such issues.25 The online survey collected information from over 10,000 Americans about their legal problems for the prior four years.26 The study did not focus on low-income Americans, but the results still offer a bigger-picture understanding of access to justice issues.
Among the findings, immigration issues were reported as being completely resolved at the lowest rates, only being completely resolved 30% of the time.27 In addition, women reported their legal issues were completely resolved 48% of the time, compared to 50% for men.28 Lastly, multiracial (non-Hispanic) Americans, Hispanic Americans, and Black (non-Hispanic) Americans reported their cases were completely resolved the least, at 41%, 46%, and 47%, respectively.29 These additional findings reflect a broader impact the access to justice gap has on individuals.
Although the justice gap is an extreme issue for low-income individuals, individuals with higher incomes still face barriers when accessing justice. Depending on the lawyer’s rate and the complexity of the case, the cost for an attorney quickly adds up to an expensive balance. The median middle-class income for a single person household is $33,350.30 Such an income is not enough to afford an attorney in addition to the already pricey cost of living. Understandably, legal aid organizations’ limited resources require lower income individuals to be prioritized for free legal help. However, this results in turning away even more individuals because their incomes are too high to qualify for free legal help. This result places many middle-income individuals in unique situations because they do not have the money to hire an attorney, but they make too much money to qualify for free legal aid. For many of these individuals, being turned away from free legal aid results in legal problems not being handled correctly or at all.
Civil legal issues are not going away. Every individual who faces the civil legal system should have access to legal representation. More work must be done to ensure individuals get the help they need and get enough help for their civil legal issues. Our Legal Access Clinic was created to address the access to justice gap between low- and middle-income individuals. Although I know our clinic is doing what we can to help close this gap, I also know it will not be enough on its own. Legal aid services must have access to enough funding to ensure no client is turned away because of lack of resources. No one should be forced to represent themselves or unable to resolve civil legal issues at all.
Notes:
1. Institute for the Advancement of the American Legal System, Justice Needs and Satisfaction in the United States of America 56 (2021).
2. Id.
3. The Justice Gap: Executive Summary, Legal Services Corporation, https://justicegap.lsc.gov/resource/executive-summary/.
4. See Scott v. Illinois, 440 U.S. 367 (1979).
5. The Justice Gap: Executive Summary, supra note 3.
6. Id.
7. Id.
8. Id.
9. Id., U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, Office of the Assistant Secretary for Planning and Evaluation, https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines/prior-hhs-poverty-guidelines-federal-register-references/2021-poverty-guidelines.
10. The Justice Gap: Executive Summary, supra note 3.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Institute for the Advancement of the American Legal System, Justice Needs and Satisfaction in the United States of America 4 (2021).
26. Id.
27. Id. at 48-49.
28. Id. at 51.
29/ Id. at 52.
30. Jake Frankenfield, What Is Middle Class Income?, Investopedia, July 14, 2022, https://www.investopedia.com/financial-edge/0912/which-income-class-are-you.aspx, citing Pew Research Center and U.S. Census Bureau (2020).