Legal services organizations and law firms that provide free or reduced fee representation often work closely with other service providers to secure transportation, food, housing, clothes, and other necessities. But legal organizations can’t typically pay for those things directly, thanks to an obscure rule that exists in many states. They can cover filing fees and some required medical exams, but cannot pay for many of the basic things that would prevent clients from getting to court for their cases.

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“Human services often have client emergency funds, so it seems like a false distinction that legal services can’t do that,” said Amy Barasch, executive director of Her Justice, an organization focused on representation for women living in poverty. “If you can’t come to court because you don’t have enough money to pay for child care while you are coming to court, that’s going to be an access issue.”

The problem lies with the American Bar Association’s Model Rule 1.8(e), which prohibits lawyers from loaning or giving clients money for anything not directly tied to litigation. At least 11 states, including Louisiana, Alabama, California, and Minnesota, have made efforts to loosen their own versions of Rule 1.8(e) so certain lawyers, mostly those working pro bono or in legal services for low-income clients, can pay on behalf of clients for things that fall outside direct litigation costs.

New York is the latest state to alter Rule1.8(e) in favor of providing aid to poor clients. Changes proposed by a committee at the New York City Bar were approved by the Administrative Board of New York courts on June 18. The push to refine Rule 1.8(e) began two years ago, but was interrupted by the COVID-19 pandemic and its accompanying state of emergency. In March, the bar modified their ask to request an immediate “humanitarian exception” to the rule for the duration of the coronavirus crisis.

The economic fallout from the pandemic may have pushed the courts to take action on the proposal. The modified rule will allow some lawyers to offer “humanitarian assistance to their clients in dire need,” according to the news advisory released by the New York State Unified Court System.

“New Yorkers are experiencing severe financial consequences as a result of the COVID-19 pandemic,” writes a previous letter from two New York City Bar committees to members of New York State’s Supreme Court. “Lawyers throughout the state have answered the call to provide pro bono assistance to those dealing with the repercussions of the pandemic.”

Indigent clients — those living in poverty who cannot afford to pay a lawyer nor court-related fees — have always needed more than volunteer lawyers are currently able to provide. Now, with job losses ballooning, more clients could enter that indigent category, and it’s likely that more people will be seeking pro bono services for eviction. The amended rule means that pro bono lawyers across New York preparing to take on cases caused or exacerbated by the pandemic now have one more resource open to them.

“Legal aid programs intersect with so many of these issues, unemployment, increased family violence, family separation or unification, eviction, foreclosure, debt problems, elder abuse. And all the things that come from a dip in the economy,” said Don Saunders, vice president of policy at the National Legal Aid & Defender Association (NLADA).

The coronavirus pandemic, like natural disasters of the past, has had a catastrophic effect on human lives and human systems. “It’s kind of like what happens after a hurricane, after you have immediate first responders, then a host of legal needs come up. We’re worried about housing, homelessness, food and nutrition and healthcare. These are all issues that people have legal rights around.”

These issues are especially pressing for people of color. The pandemic is infecting and killing New York’s residents of color at higher rates than white people, and the inequities will likely continue through the disease’s aftermath. Assistance from lawyers could also help clients who are ineligible for state supports, including undocumented people who are excluded from the stimulus and unemployment benefits. Hamra Ahmad, Her Justice’s director of legal services expects that clients who could benefit the most are those who are undocumented, minors, and/or victims of human trafficking.

Andrew Kent, Fordham Law professor and the primary author of the bar’s report, explained that clients in a financial bind will sometimes settle claims for less than they deserve. For example, “say there is someone who’s been beat up in jail at Rikers Island. If that client is getting pro bono legal help for their case, and let’s suppose that they have a good claim which might be expected to get decent money, maybe $20,000 or $40,000.”

“But if the city or the state comes to them and says we can give you a check for $2,000 today and that person has rent due, or needs costly medical treatment, or their kid needs diapers or whatever it is, that smaller amount of money might be attractive,” said Kent. If a client can’t manage their living expenses through the long court process, they may forgo a higher amount of damages in the end.

“The challenge of getting out of poverty is that everything you’re supposed to do to get out of poverty ends up costing money,” said Barasch. Good pro bono representation is a proven way to better one’s financial situation for the long term, and yet the minimum amount of participation required from clients can still be too expensive. Providing assistance to stabilize clients throughout the process could alleviate some pains and strengthen the possibility of a life-changing result.

Francesca was lucky. Most of the millions of low-income Americans faced with catastrophic events—like an abusive partner, the potential loss of a home or a job, or lack of health care—don’t get the legal help they need. Paying for legal assistance is out of the question, since lawyers cost $200 to $300 per hour on average. Legal aid options exist, but they’re stretched painfully thin: There’s less than one legal aid attorney available per 10,000 Americans living in poverty. As a result, an estimated 80% of low-income Americans’ legal needs go unmet.

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Our justice system—and our ability to achieve a wide range of federal priorities—depends on people getting the services they need to address their problems. That’s why four years ago the White House Domestic Policy Council and the Department of Justice created a federal interagency group to identify the federal programs, policies, and initiatives that would be more effective with civil legal aid. Last year, President Obama recognized the power of civil legal aid by making the effort a White House initiative and expanding its reach to 22 federal agencies.

In his Presidential Memorandum establishing the White House Legal Aid Interagency Roundtable, President Obama noted:

Federal programs that are designed to help the most vulnerable and underserved among us may more readily achieve their goals if they include legal aid among the range of services they provide. By encouraging Federal departments and agencies to collaborate, share best practices, and consider the impact of legal services on the success of their programs, the Federal Government can enhance access to justice in our communities.

The tight match between federal agencies and legal aid happens throughout the federal government. The Department of Labor, for example, has a vested interest in making sure Francesca—and the millions of Americans like her—can find and keep a job. The Department of Veterans Affairs needs to make sure that veterans receive their benefits so they can keep a roof over their heads; the Department of Justice needs to help victims of elder abuse escape their abuser; and the Federal Trade Commission’s work to combat consumer scams needs support from legal aid providers who are often the victims’ first responders.

Thanks to the Roundtable, the Corporation for National and Community Service and Department of Justice teamed up to launch Elder Justice AmeriCorps, the first ever army of lawyers to help victims of elder abuse; Department of Labor-funded American Job Centers can offer legal help to remove obstacles to employment; the Department of Justice-Department of Housing and Urban Development Juvenile Reentry Assistance Program gets legal help to young adults in public housing to give them a second chance to succeed; and the Department of Veterans Affairs’ Supportive Services for Veteran Families program helps ensure homeless veterans get the legal aid they need to get into stable housing.

Studies have shown time and again that legal aid makes a difference. Representation in housing cases increases the chance a family stays in their home; domestic abuse victims are more likely to break the cycle of violence when they have legal help; and people with criminal records are more likely to find employment if a lawyer gets their old record expunged.

Just as it’s wise to plug up a leaky roof before water seeps into the walls and causes extensive damage, civil legal aid saves public dollars by preventing problems that can be costly and harmful. For example, studies show that legal aid can improve health outcomes and drive down healthcare costs, and accelerate children’s transition from foster care to a forever family, reducing direct payments to foster parents and the expense of monitoring them.

We’re at the end of an administration that has fought to ensure Americans have access to justice and to get the best results possible for the low-income and other vulnerable people we serve. Although much has been accomplished, we must continue to expand access to civil legal aid and enhance the quality of life for all families and communities.

Editor’s note: TalkPoverty presents this series in collaboration with the Georgetown Center on Poverty and Inequality.

“In the criminal justice system, the people are represented by two separate, yet equally important, groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories.”

Police and prosecutors are the good guys in white hats.  Those accused of crimes are threatening and already presumed to be “offenders.”  And defense lawyers—the men and women who protect the rights of the accused—are rendered irrelevant.  We see this narrative dominant not only in our culture, but in our policy and politics today.

Even last week, President Obama ignored the role of public defenders in a panel he convened on criminal justice reform, a long-neglected issue I applaud him for tackling.  The panel included a police chief and a federal prosecutor but no defense attorney, much less a public defender. Like every set of recommendations introduced since this conversation began, the discussion failed to include public defenders as part of a broader reform strategy.

This devaluing of defense counsel is completely contradictory to our democratic ideals.  Our system recognizes counsel for the accused as essential if we are to achieve equal justice.  The Supreme Court said as much in Gideon v. Wainwright when it ruled that poor people accused of crimes must be provided counsel.  The Court recognized that without lawyers there can be no justice, for it is through counsel that all other rights are protected.

That decision was made in 1963, and we understood from experience that we could not always count on the judicial system to protect society’s most vulnerable members.  Poor people, and especially African Americans, had too often been treated abhorrently, and Gideon demanded that—through the right to counsel—there would be greater protections against such treatment in the realm of criminal justice.

Indeed, our nation came to understand the defense lawyer as heroic.  We rooted for lawyers like Atticus Finch in To Kill a Mockingbird, published in 1960 and awarded an Oscar for the film adaptation the year of the Gideon decision. We understood the criminal justice arena as a civil rights battleground, and the defense lawyer as critical to challenging a system that is inclined to trample the rights of the poor if left unchecked.

But as a “tough on crime” mindset took hold of the public psyche over the past four decades, we forgot the importance of our constitutional obligation to protect the vulnerable.  Instead we have created a community of “others”—almost exclusively poor and non-white—which needs to be monitored, controlled, and isolated from the rest of us.  In our rush to punish, the right to counsel gets short shrift as we fail to provide adequate resources so that defense lawyers can serve all of their clients effectively.

Indeed, we have cheered law enforcement while demonizing the populations that are locked up and the advocates who speak for them.  In doing so we have fueled our generation’s greatest civil rights crisis—mass incarceration.   Of the 2.2 million people locked up in America, almost all are poor, and disproportionately of color.

And who represents the people who are being locked up? Public defenders, who serve roughly 80 percent of all of the accused. As a result of our under-investment in these vital public servants, many poor people are forced to rely on lawyers who may juggle 800 cases annually, or are so overwhelmed that they can only spend several minutes on any particular client. John Oliver brought national attention to this problem earlier this year. He highlighted how, for example, some New Orleans public defenders were limited to seven minutes per case, and their office was so under-resourced it had to resort to Kickstarter to raise needed funds.

If we want lasting criminal justice reform and a real end to mass incarceration, we must reverse this practice of ignoring the need for a strongly supported system of public defenders.

We can change laws designed to govern how police, prosecutors, and judges do their jobs, but if we do not adequately support public defenders so that they can point out when the rules are broken, violations will go undetected.

We can devise alternatives to incarceration, but if lawyers do not have the time and resources to unearth mental health issues, substance abuse problems, and other important life circumstances, judges will not have the information they need to ensure just outcomes.

The current national conversation offers us our best shot at comprehensive criminal justice reform since Gideon v. Wainwright.  If we truly care about justice and liberty for every American accused of a crime—regardless of income—then we need to stop treating this conversation as though it were an episode of Law & Order.

Public defenders—and how we as a nation support and invest in them—must be at the center of the reform debate.

For most returning citizens, release from a correctional facility doesn’t mark the end of their punishment. Individuals are commonly sent back into a community with only a few dollars, a bus ticket, and a few days’ worth of any needed medications. Many have no housing to return to—and living with relatives could put their families at risk of eviction due to draconian “one strike and you’re out” public housing policies. Finding a job is unlikely to happen overnight—or even within the first year of release—because of the great challenge of securing employment if one has a criminal record. And in many states, people convicted of felony drug offenses too often go hungry as they are barred for life from accessing the meager assistance that income and nutrition aid programs provide.

To make matters worse, many returning citizens face debts in the tens of thousands of dollars due to child support arrears. In many states, these payments accumulate while individuals are behind bars, even though they have little or no way to earn income. And in a growing nationwide trend, states and localities are closing budget shortfalls through tactics such as charging inmates “pay-to-stay” fees for incarceration, collection fees, and even fees for entering a payment plan to pay off their debts. With funding for public defenders falling drastically short, some courts are even charging public defender fees for exercising one’s constitutional right to counsel.

In addition to trapping returning citizens in poverty, these financial debts can be a path to re-incarceration for those who are unable to pay. These and other obstacles to successful reentry are a big reason why more than two-thirds of formerly incarcerated individuals are rearrested within three years of release, many for crimes of survival. For example, M.H.—homeless, pregnant, and hungry—was rearrested for stealing two plums and three candy bars while on probation for another low-level retail theft offense.

So, what does all of this have to do with civil legal aid? Even though civil legal aid attorneys do not represent defendants in criminal proceedings, they play a critical role in dismantling a system that fuels a vicious cycle of re-incarceration by continuing to punish people long after they have served their time.

For example, civil legal aid attorneys help formerly incarcerated individuals secure affordable child support orders and fight other unjust fines and fees, so that they are able to avoid modern-day debtor’s prison. They help people obtain the necessary documentation to replace lost identification—which is key to getting reestablished in society. Civil legal aid attorneys also assist in getting driver’s licenses restored, which can be crucial to getting and keeping a job.

When employers illegally exclude jobseekers with criminal records, civil legal aid can help individuals challenge hiring discrimination. And many civil legal aid attorneys also help people clear their criminal records which improves their chances of finding employment.

Unfortunately, funding for civil legal aid has long fallen far short of what is needed to meet demand. As a result, for every client served by legal aid, a second person in need of services is turned away. Overall, less than 20 percent of low-income Americans’ civil legal needs are being met—a phenomenon known as the “justice gap.”

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While sentencing and prison reforms are key aspects of building a fair and equitable criminal justice system, these reforms are not enough. Reversing the nation’s decades-long trend of mass incarceration will also require removing unnecessary barriers to employment, housing, education, and more. This means we must ensure access to the critical re-entry services that civil legal aid provides.

Earlier this year, the Senate Judiciary Committee passed an appropriations bill that—while far from sufficient to meet demand—would boost legal services funding for FY 2016 by $10 million. Meanwhile, House appropriators have called for slashing legal services funding by $75 million—a staggering 20 percent below the current funding levels. While Congress has passed a stopgap measure to keep the government funded until mid-December, as it continues to debate the budget it should ensure that any proposal includes adequate funding for civil legal aid.  Additionally, Congress should take swift action to reauthorize and boost funding for the bipartisan Second Chance Act. This legislation allows the Department of Justice to award federal grants to government agencies and nonprofit organizations—including civil legal aid programs—that provide services to support re-entry.

If the criminal justice reform legislation introduced this fall is enacted, many currently incarcerated individuals will have an opportunity to petition for reduced sentences or early release. Civil legal aid lawyers will be important partners in helping these individuals transition back into our communities and get back on their feet. Neglecting the back end of mass incarceration—including by failing to adequately invest in civil legal aid—is a recipe for ensuring that most people will end up behind bars again, and that many of the gains we see from criminal justice reform will be short-lived.

There are no quick or easy fixes to eliminate poverty. But there is a vital resource in our communities that helps prevent many people from falling into poverty while lifting others out of it: civil legal aid. By providing legal assistance to people who face potentially life-changing and destabilizing challenges—like wrongful evictions and foreclosures, domestic abuse, and debilitating medical crises—civil legal aid allows people to protect their homes, families, and livelihoods. And it does it in a cost-effective way: A New York Task Force study found that every dollar invested in civil legal aid delivers six dollars back to the state’s economy. Unfortunately, because of a lack of investment in this resource, many families don’t get the legal help they need and therefore face the prospect of economic ruin.

It’s all too easy to become poor. In challenging economic times and with growing income inequality, it’s often a matter of bad luck. For example, Mary is a hard-working single mother in Maine who lost her job as a hairdresser when the salon that employed her unexpectedly closed down. It was already difficult to support her three children on her salary; after losing her job and then struggling to rebuild her client base at a new salon, she was unable to continue paying the rent. She found herself and her children at risk of losing the roof over their heads.

But as is the case for many people throughout the nation, things took a turn for the better when Mary got help from a civil legal aid organization. Pine Tree Legal Assistance worked with her to challenge the eviction and negotiate an agreement with her landlord that allowed her family to stay in their home and avoid poverty and a costly stay in a local shelter.

Civil legal aid also helps people who are already in poverty. Monica is a former Navy officer who was discharged for misconduct following an in-service sexual assault—behavior that was a symptom of her undiagnosed and untreated Post-Traumatic Stress Disorder (PTSD) that resulted from the assault. Despite her service to our country, she found herself unable to access veterans’ benefits due to the discharge, and was battling homelessness, jail, and addiction. She turned to Bay Area Legal Aid in California for assistance. Civil legal aid lawyers helped Monica navigate a complex system to prove that she was assaulted in the military and consequently suffered from PTSD. She now receives veteran’s benefits—including disability compensation—which is helping her get her life back on track.

Others need civil legal aid in order to escape dangerous situations, like domestic violence. In Illinois, Kayla was struggling to support herself and her son after ending a bad relationship with her child’s father—who not only withheld child support, but physically abused her during parental visits. With the help of Prairie State Legal Services, Kayla secured a protective order against her abuser as well as several thousand dollars in unpaid child support. The award and the protective order allowed her to move to another state, lift herself out of poverty, and build a new life for her family. She now makes more than $50,000 a year working as a welder.

I wish that every story of a family experiencing poverty had a happy ending. But that’s not the case, and a lack of legal counsel should never be the reason that a family can’t work its way out of poverty. In more than 70 percent of civil cases today, Americans are headed to court without legal representation. We simply don’t provide enough resources to civil legal aid organizations, and therefore too many people go without the legal help needed to avert poverty and better their lives.

In the terrible aftermath of a natural disaster, everyone recognizes the importance of water, food, and shelter as a first response. But one thing many people don’t think about is this: providing access to expert civil legal help is absolutely essential to rebuilding communities and lives.

Immediately after Katrina, people who had lost their jobs needed help getting their final paychecks from businesses and employers that no longer existed. Some landlords rented out damaged and dangerous properties with the promise of quick repairs that never happened. Other landlords found it profitable to rent out the same residence simultaneously to different desperate families

Moreover, a year after the storm, FEMA, claiming it overpaid thousands of hurricane victims, sent more than 150,000 collection letters. Insurance companies claimed that much of the damage was due to flooding, and that the policies they had issued did not cover those losses. And, to qualify for repair funds, people whose family records had been destroyed by the storm or who had never officially filed documents in probate court suddenly needed to prove they owned houses that had been passed down for generations. These challenges were amplified for the region’s most financially vulnerable individuals and families.

For 10 years, Southeast Louisiana Legal Services (SLLS), a civil legal aid organization I run, has been on the front lines helping people recover from the storm. When a landlord displaced nearly 300 families in order to charge higher rent, we challenged him in court. When lack of clear property titles threatened the ability of homeowners to access millions of rebuilding funds administered by the government, our staff and volunteer attorneys helped them clear the legal hurdles. As scam contractors exploited families who were trying to rebuild their homes, legal aid attorneys held them accountable in court. I’m proud to say we have provided assistance to nearly 400,000 people. We continue to represent Katrina survivors today, as Katrina remains our single largest civil legal aid challenge in our nation’s history.

Unfortunately, we haven’t learned our lesson about the importance of providing civil legal aid after disasters. After Superstorm Sandy in 2012, only $1 million out of the $60 billion appropriated by Congress was earmarked for civil legal aid.

If you have doubts about why we should make sure people have legal help, consider this: even today, SLLS is battling shady contractors who never rebuilt roofs or kitchens as promised, but took their customers’ money and skipped town. And FEMA—still claiming they overpaid people—is taking money from seniors’ social security checks.

I acknowledge that having access to a lawyer or some sort of legal support is not a magic fix. But it is an underappreciated model for how we should react to future disasters. Just as we have rebuilt even stronger levees to protect New Orleans, we should strengthen civil legal aid to protect our nation’s families and increase access to justice.

As a civil legal aid advocate for people living in poverty in Arkansas, I’ve seen firsthand how this policy represents the criminalization of poverty at its worst. For example, one couple was charged under the law when they fell behind on their $585 monthly rent payment and didn’t move out quickly enough. Another woman was sentenced to probation even though she had been in the hospital after suffering a stroke when she was served an eviction notice.

By criminalizing conduct that all other states treat as a private breach of contract, Arkansas puts struggling citizens in jeopardy of getting stuck in financial dire straits. What’s more, saddling renters with criminal records affects their ability to keep their job (or find a new one) and therefore makes them less able to afford rent. It also worsens their chance of securing a new home, which leads to homelessness for a lot of families.

To make matters worse, when low-income individuals are charged for nonpayment of rent, they are often unable to access the legal services that they need to defend themselves. In fact, the vast majority of the approximately 2,000 failure-to-vacate cases filed each year under the criminal eviction statute involves tenants, mostly women and children, who do not have legal representation. But, in a completely lopsided state of affairs, landlords seeking to evict a tenant always have an attorney, because the court appoints a prosecutor at the taxpayers’ expense.

Thankfully, civil legal aid advocates have seen some recent success in the effort to end this terrible policy . Artoria Smith recently found herself in an eviction dispute over back rent. She was late on her rent after the landlord demanded she pay an additional $300 to cover the cost of repairing her floor. The floor was damaged because Ms. Smith had fallen through after it rotted out.

Her story could have ended like most do: with a move, a conviction, and a fine. However, she was fortunate enough to qualify for civil legal aid at the Center for Arkansas Legal Services, one of Arkansas’s two nonprofit legal aid organizations.

Smith’s attorneys argued that the failure-to-vacate statute was unconstitutional, stating that it was a violation of due process and equal protection, unconstitutionally chilled her right to a trial, violated state and federal prohibitions against debtors prisons, and constituted cruel and unusual punishment. The judge agreed, striking down the law in its entirety in Arkansas’s largest county, which has historically prosecuted about 25% of all criminal eviction cases in the state. This case represents a major step forward for the tenants of Arkansas. Cases in two other judicial districts in the state have recently followed suit.

Unfortunately, Arkansas lawmakers have been reluctant to consider any changes to the state’s landlord-tenant laws. In 2015, two bills that would have strengthened renters’ rights were voted down in committee in the Arkansas House. HB1814 would have repealed the criminal eviction statute and HB1486 would have enacted a very basic “implied warranty of habitability,” which would have required landlords to make residential rental properties livable for tenants. Such a warranty certainly would have helped Ms. Smith.

The Arkansas legislature will have a chance to revisit the need for more balanced landlord-tenant laws when it meets again in 2017. Until then, Arkansas legal aid attorneys will be working to achieve that balance one renter at a time.

Despite the grave potential consequences, nine out of ten low-income New Yorkers who go to Housing Court do so without the benefit of a lawyer.  It is difficult to navigate the courts without assistance.  Filling out the necessary paperwork, requesting repairs, and negotiating with a landlord’s attorney are no simple matters, especially when you are facing the threat of losing your home.

In a perfect world, everyone facing eviction would receive legal representation.  In many cases, the presence of a lawyer can be the difference between keeping your home and getting evicted.  We can and must do more to increase the pool of lawyers available to serve Housing Court litigants.

Like many others, I have worked diligently in recent years to expand state funding for legal services that deal with the “essentials of life” like eviction.  In New York City, Mayor Bill de Blasio and the New York City Council have increased funding for legal assistance programs; the City has also moved to consolidate their administration of legal service funding under the leadership of Steve Banks, the commissioner of the Human Resources Administration.

Another key player has been the Robin Hood Foundation, which focuses exclusively on combatting poverty in New York.  Since 1988, Robin Hood has raised more than $1.95 billion in dollars, goods and services for vulnerable New Yorkers.  This includes a sustained commitment to supporting civil legal service providers, including the Legal Aid Society and New York Legal Assistance Group.

Make no mistake: funding for legal services is fundamental to the ability of courts to perform our constitutional mission.  In these difficult financial times, we often talk about the challenges of keeping the courthouse doors open.  But simply keeping the doors open is not enough.  If what’s happening inside those doors doesn’t amount to equal justice, you might as well close the courts.

Despite the best efforts of the courts, the city and private foundations, there still exists a significant justice gap in New York City, to say nothing about courts around the country. In recent weeks, we have taken a step to address this gap in our city.

The New York court system has joined Robin Hood, the Human Resources Administration, and the Center for Court Innovation to create a new program, Poverty Justice Solutions.  The idea behind it is simple.  Each year, Poverty Justice Solutions will take 20 recent law school graduates and place them in two-year fellowships with civil legal service providers in New York. These attorneys will work at different agencies but they will all be dedicated to the same goal: helping low-income New Yorkers preserve their housing and prevent homelessness.

The first Poverty Justice Solutions attorneys will be selected this spring and will begin work following their graduation in June.  These new attorneys will combat poverty by helping to reduce evictions and improve the financial stability of participating tenants.  They will also help close the justice gap, providing hundreds of low-income New Yorkers with legal assistance that they wouldn’t have had access to otherwise.  In the process, Poverty Justice Solutions will also help address the challenges of a constricted legal job market, providing jobs for 20 new lawyers each year.

The Old Testament tells us: “Justice, justice shall you pursue, rich and poor, high and low alike.”  My judicial philosophy is to make sure that justice is done.  I don’t consider myself an activist judge, but I do consider myself proactive in the pursuit of justice.  That’s the idea behind Poverty Justice Solutions – and behind the quest to improve access to civil legal services in general.  Meeting our responsibilities to the most disadvantaged in society is not a luxury and it isn’t a choice – it is a simple matter of justice.

 The Mississippi Center for Justice is fighting not only to end the school-to-prison pipeline, but to reform structures that perpetuate poverty in one of the poorest states in the nation.  TalkPoverty Assistant Editor Alyssa Peterson spoke with Reilly Morse, President and CEO, about the organization’s work.

Alyssa Peterson: Tell me about what your organization does and your role?

Reilly Morse: The Mississippi Center for Justice was founded in 2003 by Martha Bergmark, a longtime civil legal aid lawyer and a Mississippi native. We saw legal services as an antipoverty tool go through the wringer in the late 70s through to the 90s. And, after seeing all that on the national level, [Bergmark] worked on ways to arrive at a privately-funded version of what I think had originally been the vision of a lot of legal services programs: to provide meaningful impact work and to use the system of justice to eliminate poverty or reduce it.

The idea was to identify locations in Mississippi where meaningful, smart strategies that looked at economic justice issues on the civil legal aid side, could make a real impact. We began working on restoring Medicaid benefits to people living below the poverty level, seniors, and people with disabilities. Later, two years into the life of the organization, Hurricane Katrina struck, and [Bergmark] hired a couple of people, including me, to start a Katrina Recovery office. Over the next seven years, we did a lot of impact work, but the most significant was getting Governor Barbour to commit $132 million to finish a housing recovery that he had [previously] walked away from halfway through. This money has all gone to low-income households to repair, restore, and reconstruct their homes.

We also remain very focused on healthcare efforts. We have basically a totally recalcitrant legislature when it comes to expanding Medicaid, but we are also seeing such great strains on rural hospitals that we are hoping that these strains will turn around our state legislature when it comes to the need to find a way to put a floor under those hospitals, to put some kind of financial support, to keep them open.

Conservatives have limited the kinds of legal aid services that can be supported by federal funding. Can you provide background on historical context for that and why it’s really important that legal aid be at the center of anti-poverty efforts?

So, the Center’s view is that we need to be a voice that has fiscal independence. We have to be able to go in whatever direction we need to. We are not going to solve problems of poverty in Mississippi just by providing assistance to individual poor people one at a time. So, we have to be able to step into the layers of institutional inequity and alter them at that systemic level if we’re going to have any kind of effect at all. Just about every system that’s here – whether it’s the judicial system, whether it’s the political system or otherwise – is already calcified against poor people. It takes a powerful incursion into that to try to make meaningful change, so we have to have flexibility.

You do a lot of work on the school-to-prison pipeline, where students, primarily students of color, are funneled out of public schools and into the juvenile justice system and criminal justice system. How is this playing out on the ground in Mississippi?

Well, in the Mississippi Delta, where a lot of this work is done, you have public schools that are sharply underfunded; that are predominantly African-American; and in which teachers and administrators tend to turn school infractions into criminal or youth court infractions more than they should. So, you have a higher than normal number of referrals to youth court for offenses that are not criminal offenses and that can be properly addressed by the school systems.

We [also] learned that the rules for school discipline are wildly different between districts. In some cases, the basic rules and requirements of due process are hardly there. In other cases, you can’t find where [the rules concerning due process] are, and still in other cases, the rules are contradictory.

Our job is to intervene on behalf of these kids and their parents to make sure the law is observed and to invoke in the fullest possible way all the rights they have. This means fighting so that there aren’t referrals to youth court for things that aren’t criminal offenses, and ensuring that, if there’s an offense, that it’s treated with proportionality.

Still, there are instances in our state where there are widely disproportionate penalties placed on children. From what we’ve discovered, the students’ first experience with the justice system, whether it’s school discipline or youth court, tends to have a very powerful, negative effect on their lives, especially on the school system side. Contact with the justice system sours their view about how things are when they get out of school and when they get into the world. That, I think, erodes confidence in law enforcement and in the courts, and that stays with them for life. In addition, once kids are referred to court system and pick up a criminal charge, that charge stays with them and produces barriers to housing, future employment, and public assistance.

I was told that you all represented a first-grader who was suspended for a year for bringing a pink toy gun to school. Are these sorts of punishments for minor incidents common?

That’s a particularly colorful example, but you’ll have all kinds of instances like that. In fact, there was a Department of Justice consent decree entered in the Meridian School District with similar types of examples – children disciplined for wearing nonmatching socks, or doing various other things that are just trivial, flippant, kid things. They are not stuff that you send somebody to youth court for.

We try to build the capacity to address poverty so we do not have to depend on someone from the outside swooping in, solving one problem, and leaving. This is about building a consistent, long-term force for upward mobility for Mississippi.

The President requested a 33 percent increase in their budget request for the Office for Civil Rights, which often enforces these cases. Do you think greater federal enforcement would have an impact in Mississippi?

It can only help but it’s important that there is also state-level recognition and respect for these requirements. It ought not only be on the Feds to enforce the Constitution of our nation. It ought to be part of what our state Attorney General does, and it ought to be part of what our legislature takes into account when it passes laws. But they [the legislature] only seem to have an appetite for increasing punishment for the poor.

For example, last year, they passed a law to do drug testing of TANF beneficiaries, and the initial version of that law said that any person who did not pass the drug test would be disqualified. But then, our [implementing] agency passed rules saying that anyone in the family who was receiving benefits would also be disqualified. That wasn’t in the scope of the law, so we pushed back. You can see that there’s a default tendency to find a way to punish more poor people if you can get away with it, and that’s happening at the state level.

It seems on the national level that there is momentum between conservatives and progressives to reach a consensus to reform the criminal justice system? Have you seen that in Mississippi, and what would that compromise look like?

That’s interesting because [reform] has some momentum on the sentencing side. Last year, the high cost of incarceration reached a threshold of pain for our state leaders, and they started to look at ways to deal with non-violent offenders, particularly by resentencing or altering parole and probation rules for certain classes of offenders. They’re finding ways to lower the population in our prisons for non-violent offenders, and that’s kind of a remarkable step forward for our state. I’m very happy about it. It’s a small, but important, step.

So what are some of your upcoming fights and goals for the year?

We are very interested in putting some kind of uniform due process standards into place for school districts when dealing with discipline issues. This is how to root out systemic problems and how to make headway on our education and poverty challenges

We also are very interested in further pushing out an initiative we began about two years ago called the New Roots Credit Partnership. The program is an alternative to pay-day lending, and involves pairing public employers with banks and credit unions that offer saner alternatives to payday loans. [These alternatives have] lower interest rates, better repayment terms, and mechanisms that aren’t engineered to push people further into a hole. Those are probably the top two priorities.

Gideon’s Promise is a movement of hundreds of public defenders nationwide who are working together to change this unacceptable status quo.

In 1963, when Martin Luther King, Jr. delivered his “I Have a Dream” speech at the March on Washington for Jobs and Freedom, civil rights abuses were prevalent and devastating in the arena of criminal justice. So it is no coincidence that during that same year, the United States Supreme Court sought to address the role that race and class played in the administration of criminal justice.

In Gideon v. Wainwright, the Supreme Court required that the state provide poor people accused of a crime with an attorney.  It noted that a layperson simply cannot effectively navigate the labyrinth of laws and procedures that make up the criminal justice system.  Only the right to counsel would ensure that a person accused of a crime would receive justice.

But the right to counsel is only meaningful if state-appointed attorneys have the same skill, training, resources, and level of commitment as lawyers who represent people with means.  As I began working on criminal justice reform efforts across the South a decade ago, I saw systems that fell far short of providing basic standards of representation for poor people. I met countless young public defenders who had begun their careers filled with enthusiasm, only to have the passion beaten out of them by a system that effectively expects public defenders to help process poor people into prison cells.

These lawyers were deprived of the resources, training, and support they needed to live up to their constitutional obligation. They were forced to handle crushing caseloads that didn’t allow them to give the time their clients deserved and needed. Many began to feel hopeless and eventually quit. Others were worn down, resigned to the status quo. A few remained inspired, continuing the Sisyphean task of fighting a system that had abandoned its quest for equal justice. But all too often these individuals were like a lone voice screaming against a deafening wind.

In 2007, my wife and I founded Gideon’s Promise to build a strong community of public defenders who would have the training and support necessary to immediately improve the standard of representation for their clients.  We wanted to develop this community into a movement—one focused on changing a criminal justice culture that is anything but just, and pushing back against the forces that pressure public defenders to simply process clients.

Gideon’s Promise began with just 16 young public defenders drawn from two offices.  To date, more than 300 public defenders in 15 states have participated in our initial, three-year training and support program. A national faculty comprised of more than 60 experienced public defenders volunteer as our trainers and mentors.  We have added programs that serve our graduates, senior lawyers, and public defender leaders. With more than 35 “partner” public defender offices, Gideon’s Promise is changing the landscape of public defense for tens of thousands of people who depend on court-appointed counsel each year. Through partnerships with law schools, we are also creating a pipeline for recent graduates to join our effort where the need is greatest. Finally, by working with jurisdictions across the nation to share our model, Gideon’s Promise has indeed evolved into a comprehensive movement of inspired public defenders committed to transforming criminal justice in America.

There is no greater threat to equal justice than when our public defenders are beaten into submission.  At that point, a poor person accused of a crime has no chance. But through a strong and supportive community like Gideon’s Promise, lawyers for the poor can stay inspired and continue to fight one of the least popular, but most important, civil and human rights battles of our day.

However, the devil is in the details.

A sizeable number of Americans (and politicians) claim to support survivors while limiting their ability to access the supports needed to leave an abusive relationship. In essence, people are trying to reap the benefits of appearing “anti-violence” while supporting policy choices that in fact aid and abet abusers.

Almost half of all survivors report experiencing financial difficulties.  Those who support survivors should not force them to choose between abuse and homelessness. Nor should they ask survivors to risk losing their health insurance or custody of their children.

Yet that’s exactly what some of our current policies choices do. The status quo strengthens abusers and harms survivors by:

Weakening direct services. We often have many positive things to say about the advocates who dedicate their professional lives to assisting survivors of domestic violence. Yet at the same time our lawmakers haven’t given them the funding they need to do their jobs. Three vital programs – the Legal Assistance for Victims program, the Rural program, and the Transitional Housing program – had their funding cut in the 2014 appropriations bill. In fact, some lawmakers, such as Congressman Paul Ryan, have supported further cuts to funding for domestic violence service providers. These funding pressures occur at a time when the number of survivors coming forward will likely increase, in part due to referrals from the invaluable domestic violence screening and counseling benefits included in the Affordable Care Act.

As demand for services rises, let’s remember that on one day last year, almost 10,000 requests for services were denied due to a lack of sufficient resources for service providers.  Further, more than 1,500 service provider staff positions were eliminated last year. The fact is when survivors cannot receive services, sixty percent return to their abusers.

Undermining access to attorneys and court advocates. For many survivors, access to civil legal services is essential to ending abuse. Through the court system, survivors can receive civil protection orders (also known as restraining orders), obtain a U-visa, or divorce an abusive partner.  Attorneys can also help survivors gain custody of their children, eliminating a common threat abusers use to force survivors to stay. But despite the demonstrated benefits of legal services, inadequate funding last year resulted in only 12% of domestic violence programs assisting survivors with legal representation, and slightly more than half were able to have an advocate accompany a survivor to court.

Civil legal aid providers—who also handle many domestic violence cases—remain badly under-resourced. In the past few years, more than 1,200 individuals who worked for legal services providers have lost their jobs due to funding cuts as the number of individuals who qualify for legal aid has risen.

This gap in services is alarming. The immense power differential between an abuser and a survivor, along with the effects of trauma, make it exceedingly difficult for survivors to file petitions without support.  Survivors are placed at even more of a disadvantage when their abusers have access to legal resources.

Refusing to pass paid safe days legislation. Many survivors do not even make it to the courtroom because they cannot take off work. Only California, Connecticut, the District of the Columbia, and four cities provide survivors with paid “safe” leave. In the vast majority of states, survivors who work in low-wage jobs with little job security cannot take off multiple days of work to attend courtroom proceedings. They are forced to choose between providing for themselves and their families and their safety; some may stay with an abuser as a result. For a country that claims nearly unanimous support for survivors of domestic violence seeking help, we make it very hard for them to actually access it.

Failing to invest in affordable housing. Instead of choosing to preserve existing affordable units and build new ones, we have lost almost 13% of our nation’s supply of low-cost housing since 2001. While direct service providers strive to provide domestic violence survivors with emergency shelter, it is impossible for them to meet the demand for long-term housing. When we fail to invest in the affordable, permanent housing, survivors are forced to choose between terrible options. They may ask, “When my stay in emergency housing ends, do I return to my abuser, or do I become homeless?” or “Do I stay in this lease with my abuser or do I move out, knowing I have nowhere to go?”

Support for survivors cannot be separated from support for a robust social safety net, affordable medical care and housing, paid safe days, and well-funded domestic violence service providers and legal aid providers. It’s time to evaluate our policy choices. It’s time for all of us to make a real commitment to ending domestic violence—not just in word, but in deed.

One of the best ways to prevent unnecessary foreclosures is to provide struggling families with a legal aid lawyer.  While the state guarantees legal representation for any criminal proceeding, there is no such guarantee in civil cases. Therefore, access to fair representation depends largely on the availability of free legal aid lawyers who have a long track record of helping people with no other options—such as battered spouses, people with disabilities, parents seeking child support, homeless veterans, and others without means.

Legal aid lawyers have the necessary training to help homeowners navigate the byzantine mortgage servicing system. They can identify mortgages that were illegal or predatory, and also help families make their mortgage payments by securing resources like unpaid wages, child support, public benefits, or unemployment insurance. Legal aid programs have saved many thousands of homes since the start of the financial crisis, but recently have struggled to secure funding for their vital work.  The Bank of America settlement will hopefully be helpful in this regard  but we need to do much more.

Early in the foreclosure crisis, the Center for Responsible Lending, a national advocacy group, received a $15 million grant for an innovative grant-making enterprise called the Institute for Foreclosure Legal Assistance (IFLA).  Over the course of three years, IFLA more than doubled the number of attorneys devoted to foreclosure prevention work and created a national infrastructure of training, informational materials, and networking that served as a powerful force multiplier. The program ultimately reached tens of thousands of borrowers either through individual assistance, broadly applicable policy changes, or access to critical information and materials.

Yet funding for IFLA was only available for three years, and at the end of that period, IFLA closed its doors. Since then, resources for foreclosure prevention work have dwindled even as the significant risk of foreclosure for millions of homeowners continues. Yet the IFLA infrastructure still exists, and an infusion of funds could immediately be put toward productive use without the need to build a new program.

While the Bank of America settlements directs monies to states, there is another source of federal monies that could be used to restart IFLA’s critical work: the remaining funds from the Independent Foreclosure Review (IFR).

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The IFR was initiated when financial regulators found evidence that mortgage servicers had engaged in rampant misconduct when troubled borrowers came to them for help with their mortgages. The regulators first attempted to review every case individually, but that effort foundered. Instead, they decided to compensate homeowners who were most likely to have been harmed by the servicers, setting aside $3.6 billion for this effort. Borrowers ultimately claimed roughly 86 percent of the monies set aside but approximately $500 million remains unclaimed.

Regulators are considering giving those remaining funds to states for their “unclaimed funds” accounts in case homeowners file late claims. However, under this scenario, it is unlikely that much of that money will end up in the hands of homeowners seeking compensation. In fact, according to a recent letter to federal regulators from the National Housing Resource Center—an advocate for the nonprofit housing counseling community—only 2.8 percent of unclaimed funds held by New York State, and about 6 percent held by the state of Texas, reach the rightful owners every year. These funds are much more likely to end up in a state’s general funds where they could be used for just about anything, as has occurred with proceeds from other mortgage settlements.

Instead, regulators should send the states only the amount of remaining IFR funds that are likely to be claimed by homeowners. The rest of the money should be used for other foreclosure prevention efforts—including re-funding IFLA—to reinvigorate critical civil legal aid efforts, prevent unnecessary foreclosures, and help stabilize communities that are still being left behind in the economic recovery.

With the Bank of America agreement, hundreds of billions of dollars have now been collected in settlements with lenders and servicers, and families and neighborhoods should be far better off than they are now. Adequately funding national, state and local civil legal aid programs is one of the most effective ways to ensure that these settlements provide meaningful assistance to the people and communities that have been hit the hardest by the bad behavior of financial institutions.

To change all that, Paul completed a construction apprenticeship program. Less than two weeks after he graduated, Paul had strong prospects with a construction company and a major utility company. Amidst all this good news, however, Paul received a letter that brought his forward momentum to a halt.

A “Notice of Proposed Revocation” informed Paul that his driver’s license could be revoked because of overdue child support payments. Paul had known about the child support order, but it simply wasn’t something he could afford to pay. The amount was based on his salary at a job he had lost more than a year before the order was set. Paul made cash payments directly to the child’s mother whenever he could, not realizing that those payments “didn’t count” because he was supposed to make them through the District government. After months without income he ran out of money to make any payments. But if Paul lost his license, none of the positions for which he now qualified would be available to him, and he’d be right back where he started – unable to pay his child support. Now what?

We must break the underlying legal barriers to employment.

It is no secret that getting and keeping a stable job, let alone a job that pays a living wage, is already a challenge for far too many people living in poverty in D.C. and across the nation. Black workers and young workers were hit particularly hard by the recession, and unemployment rates for several groups of workers remain high today, including those without a college degree. While the overall unemployment level in the District is 7.5%, unemployment levels in Wards 5, 7, and 8 hover in the 15 to 20% range, with poverty rates as high as 25% (Ward 7) and 34% (Ward 8).

D.C. residents and advocates have improved the pathway to jobs with decent wages in part through successful efforts to raise the minimum wage, strengthen wage theft laws, remove criminal history questions from job applications, and develop employment training programs like the construction apprenticeship sought out by Paul. But, as Paul’s story reveals, these efforts aren’t always enough.

Among the legal barriers to employment are: criminal or arrest records, poor or inaccurate credit reports, child support arrears and suspended drivers’ licenses, domestic violence, prior homelessness or lack of stable housing, and other issues that may appear unrelated to employment. These barriers may distract even the most dedicated job seekers from their search, prevent a skill-based assessment of their application, threaten the credentials that make them eligible for sought-after positions, and hinder their ability to keep employment once it is secured.

As Paul’s story shows, overdue child support payments can cause job seekers to lose their driver’s licenses, contribute to negative credit reports, and ultimately can lead to jail time. Prior arrests and convictions may cause employers to reject an applicant without ever assessing whether that conviction is relevant to job performance. Ongoing domestic violence, custody disputes, unstable housing, and financial instability due to debt and predatory lending can all cause significant disruption to job searches and job retention.

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For example, how does someone who is homeless or couch surfing receive information from potential employers? Or complete an application form that requires an address? Or maintain appropriate clothing for an interview?  How can a mother whose children are chronically ill from sub-standard housing conditions avoid absenteeism?  The longer these issues persist, the more likely they are to affect job seekers and workers who lack other resources to help them cope with financial stress.  And what happens when these vulnerable workers do not receive the wages they are due or are subject to excessive garnishments?

These concerns do not need to be faced alone. In many cases, civil legal services can help remove these barriers by:

• Securing the restoration of driver’s licenses
• Overcoming problems associated with arrest or conviction records, including record sealing, improper employer inquiries, mistaken identities or other inaccuracies
• Providing information about credit records, correcting inaccuracies, and advising how to respond to prospective employer inquiries
• Advocating for individuals whose child support payments are set unreasonably high or have become overdue, particularly when the individual is threatened with incarceration or loss of a driver’s license
• Securing protection or resolving problems associated with domestic violence, child custody disputes, and child support
• Improving and stabilizing housing and addressing health problems affecting family members, including those caused by dangerous living conditions
• Recovering unpaid wages and remedying other forms of workplace mistreatment

Not long after Paul received notice that his driver’s license might be revoked, his apprenticeship program hosted attorneys from Neighborhood Legal Services Program (NLSP).  The attorneys informed the trainees about the civil legal underpinnings of common hurdles facing job seekers. After participating in the presentation, Paul sought NLSP help.  An attorney prevented the suspension of Paul’s license and is now helping him secure a child support payment plan that more closely matches the amount he is currently able to pay. Shortly after he found out his license was safe, Paul got the flagger job on a construction crew, his first full-time position since 2011.

Advocating for a living wage and job training is necessary, but is also insufficient for many people who are seeking to enter or stay in the workforce.  That’s one reason why access to civil legal aid is so critical to workforce development and anti-poverty efforts. Working closely with community groups, social service agencies, and job training programs, civil legal aid programs can help job seekers identify and break these legal barriers to employment.