An order signed by President Biden this past week seeking to make legal representation more attainable has advocates hopeful it could improve access to civil courts — including for those facing eviction or immigration penalties.
The order, signed by Biden on Tuesday, directs the Department of Justice (DOJ) to devise a plan for expanding access not just to public defenders but also to the civil court system, where legal representation is not guaranteed by the government.
It’s an issue advocates say is timely since the fallout from the coronavirus pandemic could lead to a surge in tenants and homeowners fighting evictions and foreclosures as well as those pushing for medical assistance.
They also see it as an opening for the Biden administration to require access to an attorney in immigration courts — a civil court setting where migrants can face life-altering outcomes such as deportation.
Biden’s order gives Attorney General Merrick Garland 120 days to craft a plan, along with a budget and staffing, to expand access to legal representation for both criminal and civil cases.
“It’s somewhat amorphous to say, ‘Go study access to justice,’ but we’re coming off of four years where no one would even think to utter those words,” said Jonathan Rapping, founder of Gideon’s Promise, a nonprofit public defender organization.
The order also reestablishes the DOJ Office for Access to Justice, which was eliminated by the Trump administration, and revives the White House’s Legal Aid Interagency Roundtable after four years of dormancy.
The Biden administration has touted the order as a way to “reinvigorate the federal government’s role in advancing access to justice.”
“Timely and affordable access to the legal system can make all the difference in a person’s life—including by keeping an individual out of poverty, keeping an individual in his or her home, helping an unaccompanied child seek asylum, helping someone fight a consumer scam, or ensuring that an individual charged with a crime can mount a strong defense and receive a fair trial,” the White House said in a statement.
The effort seeks a turnaround in systems long under strain. Some 80 percent of those facing felony charges cannot afford an attorney and are left to rely on a system of overworked public defenders. Meanwhile, the Legal Services Corporation, which funds civil legal aid across the country, found that in more than half of cases, people receive “only limited or no legal help” due to a lack of resources.
Shamus Roller, executive director of the National Housing Law Project, said the order could be particularly important in the housing arena given that the eviction moratorium from the Centers for Disease Control and Prevention is set to expire at the end of June.
A massive uptick in those evicted following the pandemic will lead to more problems, Roller said, as those with an eviction on their record will be far more likely to be turned down by prospective landlords.
“Many people with no record in the past will now have an eviction record, so the scope of problems around that are going to be really amplified in the years to come,” Roller said.
Those who are represented are more likely to stay in their homes or owe less to landlords even when they are evicted, Roller said, but there’s often a major imbalance in the number of tenants and landlords able to hire lawyers.
A recent survey from the National Coalition for a Civil Right to Counsel of some cities and states found that just 3 percent of tenants are represented by a lawyer, compared with more than 80 percent of landlords.
And evictions aren’t the only concern.
“There’s so much focus on eviction, but foreclosures are the next wave of issues, and there’s really no sense of how at risk we are overall in the country,” Roller said.
Don Saunders, with the National Legal Aid & Defender Association, said the DOJ could use the effort to serve anyone from veterans to farmworkers.
“We could expand medical legal partnerships where lawyers will be involved in the health system. The easiest example is if a child is suffering from asthma because of health conditions in the home, say mold, a lawyer might be able to treat the cause more than the symptoms,” he said.
“These are the kinds of communities we need some creativity and investment in at the federal level,” he added.
Immigration courts could be another high-impact area for the Biden administration, particularly as it focuses on expanding legal pathways to citizenship.
“There is no right to appointed counsel in the immigration system — something I don’t think is widely known — so people in court appear opposite a federally funded [U.S. Immigration and Customs Enforcement] lawyer and judge often in their second, third or fourth language by themselves unless they’re lucky enough to get a pro bono attorney,” said Heidi Altman, director of policy at the National Immigrant Justice Center.
The government does have small pilot programs offering counsel to children and people with mental disabilities and disorders who are facing deportation.
“Those are highly compelling populations that need legal representation, but it should not be limited to those populations,” said Greg Chen, director of government relations for the American Immigration Lawyers Association.
It’s an idea that’s been introduced in Congress multiple times but hasn’t gained traction.
Chen said the government could expand slowly, starting out with asylum-seekers, people already in immigration detention and rare-language speakers — something he estimates would need an initial investment of $200 million.
Even without new programs, Altman said the government could do more to ensure those in detention who have managed to secure legal assistance are able to freely communicate with their attorneys, limiting the expense of jailhouse phone systems and allowing access to confidential meeting spaces.
Akhi Johnson, deputy director at the Vera Institute for Justice, said some immigration issues could also be addressed by working to ease the burden on public defenders.
“Right now, public defenders tend to be overburdened with cases they have and don’t always have training on deportation consequences,” he said.
“You might plead someone out to something that has really drastic immigration consequences, and that person finds themselves deported for something a less overburdened lawyer might help them avoid,” he added.
Rapping, of Gideon’s Promise, is hopeful the Justice Department might turn to legislation sponsored by Vice President Harris from when she was in the Senate. Her bill would have boosted funding for public defenders and required parity in pay with prosecutors.
He also said the government should be tying its existing grant funding to programs that “address issues of racial and economic disparities.”
“These dollars come with a stick and a carrot. These states depend on this money, and we can say, ‘If you want this money, you have to do several things,’” Rapping said.
“We can say, ‘If you’re not committed and don’t have a plan to really improve schools, health care and housing for people on the margins, we are not giving you the money.’ That’s the power of the federal government,” he added.