Under the Obama administration, the Department of Justice began proactively addressing the justice gap, the gap between legal needs and services available. It was anticipated that Attorney General Jeff Sessions would find the cause less compelling than did Attorneys General Eric Holder and Loretta Lynch, but that doesn’t make the news that Sessions has killed the DOJ’s access to justice program any more palatable. As Jane Austen observed, “the expectation of an unpleasant event, however certain” and certainty are very different things.
The crisis in access to justice in the United States is enormous—and growing.
In more than three-fourths of all civil trial cases in the United States, at least one litigant does not have a lawyer. Figures are even starker when it comes to family law, domestic violence, housing, and small-claims matters—those involving disputes over amounts up to $25,000, depending on the state. At least one party lacks representation in 70 to 98 percent of these cases.
And these are just the Americans who make it to court. Without access to legal advice, many are unaware of their legal rights and potential claims. Past estimates and more recent state-by-state studies suggest that about 80 percent of the civil legal needs of those living in poverty go unmet as well as 40 to 60 percent of the needs of middle-income Americans.
Of course, some populations are more deeply affected than others.
The justice gap … has the greatest implications for the United States’ most vulnerable populations: those at greatest risk under the policies announced by the incoming administration. On the civil side, people of color, women, immigrants, the elderly, people with disabilities, and lesbian, gay, bisexual, and transgender, or LGBT, people are more likely to live in poverty and more likely to need legal assistance. Claiming protections under the Americans with Disabilities Act, for example, often requires, at a minimum, legal advice, and at most, litigation.
The justice gap not only most affects those living in poverty but also perpetuates poverty. It also comes at great cost to government: Preventing eviction, for instance, is less expensive for governments than providing emergency housing or covering the higher costs associated with homelessness. In particular, providing attorneys for litigants in cases involving housing, health care, and domestic violence saves governments money and creates both social and economic benefits.
The Obama administration was the first to emphasize access to justice as a critical concern, creating DOJ’s Office for Access to Justice in 2010 and the White House Legal Aid Interagency Roundtable in 2015. These were landmark acts.
Mr. Holder oversaw the creation of the office as part of a broader civil rights and criminal justice reform push, trying to draw attention to what he deemed a national crisis of substandard legal aid for the poor. … Under Mr. Holder, the Justice Department filed so-called statements of interest in dozens of local lawsuits around the country alleging that poor citizens had received substandard legal services. He also supported a class-action lawsuit against Gov. Andrew M. Cuomo and the State of New York for violating the rights of people who could not afford to hire lawyers.
Now the Trump administration has become the first to formally disavow any commitment to increasing access to justice.
While Attorney General Jeff Sessions cannot close the office without notifying the Congress, he can sideline it by moving its resources elsewhere. Its offices now sit dark on the third floor of the Justice Department building. The staff of a dozen or so has dwindled and left the department over the past few months, the people said.
The Sessions’ direct assault comes even as the administration takes actions certain to exacerbate the justice gap and a proponent of eliminating the nation’s largest civil legal aid provider, the Legal Services Corporation (LSC), occupies the Naval Observatory.
While serving on the Republican Study Committee, Vice President Mike Pence previously proposed eliminating LSC. In his proposed budget for 2018 (the so-called “skinny budget”), President Trump did the same. The most promising federal policy options for improving access—an increase in LSC funding, an expansion of eligibility for aid, and the termination of restrictions on aid—are out of reach.
Even as funding shrinks, so, too, do means of creating and enforcing protections through agency regulation….Often overlooked in the access to justice debate, the regulatory state is responsible for creating enforceable protections—bans on harmful substances, like lead paint, and rules to ensure safe drinking water, for example. Deregulation has staggering implications for human health and safety.
Meanwhile, legislation like the Fairness in Class Action Litigation Act would block critical avenues for civil rights litigation and efforts to ensure corporate and governmental accountability. Class actions are a particularly critical means of surmounting the information gap. Representative plaintiffs who are aware of their rights and can seek legal assistance are able to bring suit on behalf of those who are not and cannot. In the course of a successful class action, other members of the class are informed of their rights and see them vindicated without cost.
Unfortunately, this is just the latest, clearest example of the Trump administration’s disregard for justice itself.