For criminal justice reform, look to civil legal aid

Later this month, in the first-ever papal address to Congress, Pope Francis is expected to call for reducing the number of people in U.S. prisons. In doing so, he will join a wide range of vocal criminal justice reform proponents, including billionaire brothers Charles Koch and David Koch, the American Civil Liberties Union, Sens. Rand Paul of Kentucky and Corey Booker of New Jersey and even House Speaker John Boehner and President Barack Obama.

Even policymakers who commonly disagree on most issues can no longer ignore that tough-on-crime policies have nearly tripled the U.S. prison population since the 1980s. More than 7 million Americans are caught up in the system through fees, fines and warrants, imprisonment, probation and parole. Although we await comprehensive reform, there is growing consensus that current practices are unjust and unsustainable and must change. 

But any reform will fall short unless our leaders recognize that being smart on crime requires being just as smart on civil justice. The ongoing reform debate too often overlooks the ways in which the criminal and civil justice systems intertwine to harm people of color and the poor.

Consider Mary, a mother of two from southern Missouri facing criminal charges for falling behind on child support payments she could not afford. The Missouri State Public Defenders Office and the nonprofit Legal Services of Southern Missouri referred her to Helping Parents Help Children, a project they jointly operate with prosecutors. With their help, she was able to modify her monthly child support to an affordable level. The new arrangement now allows her to meet her obligation without prompting recurring criminal charges.

Similar problems overwhelm the U.S. justice system on a daily basis. Millions of evictions and foreclosures, domestic violence cases and accusations of neglect, debt collections and denials of benefits, civil asset forfeitures, civil court fees, suspensions of driver’s licenses and more churn through local courtrooms. When neglected, the problems fester, and lives go awry. The result is a spinning cycle of poverty and correctional control as hunger, isolation, stress and violence inevitably draw people into the system and burden our society.

None of this is to suggest that civil legal aid can solve all the problems of poverty or prevent all the excesses of the criminal justice system. But it can make a significant difference, for example, by helping families save their homes from foreclosure or allowing parents and children to stay in jobs and schools instead of landing on the street. Civil legal aid can also help people settle their debt burdens, saving their money and their dignity while satisfying creditors instead of slipping into a shadowy existence. It can assist those in child support disputes (as in Mary’s case) and halt domestic violence, pre-empting escalation that leads to criminal prosecution.

“Increasing the provision of civil legal services is likely to help drive down the incidence of domestic violence overall,” write the authors of a recent report (PDF) by the Institute for Policy Integrity at New York University Law School. “As a result, police will have to respond to fewer domestic violence calls, and prosecutors will have to investigate and press fewer criminal charges.” In other words, assuring that victims have civil legal aid is an effective way of reducing domestic violence.

Yet as important as civil legal aid is, there isn’t enough of it. A 2009 study (PDF) by the Legal Services Corp., a nonprofit that provides grants for civil legal assistance to low-income Americans, found that for every client served by organizations it funds, one person who seeks help is turned down because of insufficient resources. Last year the National Center for Access to Justice, a national policy organization I founded in 2011 to improve access to civil and criminal justice systems, launched the Justice Index to track not only the number of civil legal aid lawyers in every state but also the adoption of new models of assistance for people with disabilities, individuals with limited English proficiency and those navigating the civil justice system without a lawyer. The index alerts states that are lagging in their pursuit of best practices by setting benchmarks and comparing findings online.

The new models, which aim to level the playing field for those unable to obtain a lawyer, range from online tools that generate proper legal pleadings to legal assistance from trained nonlawyers to help from proactive judges that ensures fairer treatment for people without counsel to laws recognizing a civil right to counsel. The civil legal aid movement has rolled out the models across the country alongside efforts to increase the availability of legal representation while supporting research on the efficacy of these approaches. In an important step forward, the Conference of Chief Justices and Conference of State Court Administrators have issued a resolution committing state judiciaries to the goal of assuring 100 percent access to effective legal assistance.

The Justice Index shows substantial progress but room for improvement. Even the highest-scoring state in its 2014 findings (the top five were Connecticut, Minnesota, Hawaii, New York and Delaware) had only 3.46 civil legal aid lawyers per 10,000 poor citizens, and 29 states had one or fewer civil legal aid lawyers per 10,000 poor citizens. By contrast, there are 40.52 attorneys for every 10,000 people in the general population. The findings underline the need to increase both the number of civil legal aid lawyers and the availability of the new models of civil legal assistance.

As calls for more sensible policies on crime gain force across the political spectrum, it is important to remember that the success of the criminal justice system reform movement will be contingent in many ways on civil justice system reform. The Justice Index and other data-intensive tools can help to highlight the availability and importance of civil legal aid solutions. We need our leaders and lawmakers to increase their support for civil legal assistance that ensures access to justice for all.