In 1963, the Supreme Court enshrined the right of access to counsel for all criminal defendants, regardless of their ability to pay, in a unanimous decision in the seminal Gideon v. Wainwright case. In the years after, a movement followed with the stated goal of expanding the right to counsel beyond criminal law and into civil law for all who require it.
On September 24, the Rappaport Center for Law and Public Policy hosted a panel, “Civil Gideon: Re-Examining Equal Access to Justice in Family Law, Housing, Immigration, and Juvenile Law,” on the Boston College Law campus to discuss how that movement has fared in the intervening years.
Moderated by Russell Engler, director of clinical programs at New England Law, the event provided an opportunity to hear about the advances, or lack thereof, in the so-called Civil Gideon movement in each of those areas of law. Two judges and two practicing attorneys discussed a number of topics, including the stacked odds that per se clients often face in civil cases, the differing approaches to addressing these problems that are already happening, and whether or not they believe a Civil Gideon would best address the inequities faced by many in the civil legal system.
The Honorable Shera Grant, a district court judge in the civil division of Jefferson County Alabama District Court, focused on the massive discrepancy in who has access to representation in her housing court. For that reason, she argued, a Civil Gideon approach is needed. “From seeing it in the courtroom in the civil arena, I’m a proponent of Civil Gideon; 90 percent of tenants are not represented while 90 percent of the landlords are represented,” she said.
Judge Grant went on to point out substantial benefits she’s seen for those tenants who gain access to free counsel through initiatives like Legal Services of Alabama, a non-profit law firm that provides free civil legal assistance to low-income Alabamians. “When they represent a tenant, they’re able to bring counterclaims, they’re able to bring valid jurisdictional issues. Even when there is no defense, our lawyers are able to work out a better negotiation or a settlement [for the tenant],” she explained.
Jennifer Klein, director of the immigration impact unit for the Committee for Public Counsel Services, shared some of Judge Grant’s sentiments while providing perspective from her own area of expertise. Klein pointed to the stark discrepancy in case outcomes for people with and without representation in immigration cases. She noted that while she and her colleagues can work with immigration clients while in the criminal system, those same clients lose access to that assistance when entering the immigration courts, which are governed under civil law.
“We can do all the beautiful work of crafting depositions and thinking about what the legal arguments are for why the conviction that they have doesn’t make them deportable,” Klein said. “But then they get sent off into the world and they end up in immigration court and no one is there to make that argument for them.” She added that she viewed Civil Gideon as key to protecting the rights of those navigating immigration courts and would push for it.
“My suggestion is to think about these issues as regards to the intersection of class and race and to really walk the public health walk. We save money in the long run by investing in families, and I think what you need is a political commitment to reallocate those limited dollars in a way which is more public health oriented.”
The Honorable Jay Blitzman ’74
Looking at it from a slightly different angle, the Honorable Jay Blitzman ’74, former first justice in the Juvenile Court of Middlesex County, said that even though more representation has been given to juvenile defendants—especially in Massachusetts—he views a Civil Gideon approach as secondary to one focused on public health. “My suggestion is to think about these issues as regards to the intersection of class and race and to really walk the public health walk,” he said. “We save money in the long run by investing in families, and I think what you need is a political commitment to reallocate those limited dollars in a way which is more public health oriented.”
Judge Blitzman emphasized the costs to the state when these issues are handled in litigation, and argued that a public health approach was a way to mitigate those costs and reduce the need for legal representation in such matters: “If we engage in proactive public health-oriented interventions, we will avoid unnecessary state intervention in the first instance; there’d be no reason or no need to come to court.”
Laura Gal, managing attorney of the family law unit at Greater Boston Legal Services, outlined some major gains in access to counsel in family law proceedings, most significantly from the Massachusetts Supreme Judicial Court case, The Department of Public Welfare v JKB. In the case, the court established the right to counsel for indigent parents when what is now known as the Department of Children and Families seeks to terminate parental rights.
However, Gal noted that there is a different barrier to a guaranteed right to counsel across all family law disciplines because there are many cases in which parties on both sides of the dispute cannot afford an attorney. That reality means that should a Civil Gideon approach take hold, the cost to the state in family law cases could prove to be significantly higher than in the other areas discussed by the panel.
With that in mind, Gal noted that many courts are now looking to find answers outside of the courtroom. “There has been a lot of positive energy in helping people to find quicker exits from the litigation track,” Gal said, by using various forms of what the court calls alternative dispute intervention. However, she also offered a word of warning about that approach, saying people’s full knowledge of their rights is key to making any fair compromise. “If the parties don’t have an understanding of what their legal rights are, they may be reaching a compromise that is very different from what justice would give them. If you’re doing that in a vacuum, that’s two tiers of justice and that’s another reckoning that we’ll have,” she explained.
In the end, while all the panelists held slightly differing views on the legacy and future of the push for a Civil Gideon, they agreed that more work is needed on multiple fronts to address the inequitable nature of per se representation in civil courts. Judge Blitzman, referencing the famous Martin Luther King Jr. quote about how the arc of the moral universe is long but inevitably bends toward justice, added a small caveat to that sentiment: “It doesn’t happen by itself. It takes sweat equity; it takes effort to keep pushing that rock of equity to address some of these searing inequities.”
Photograph by Reba Saldanha