11/13/2012 04:47 pm ET Updated Jan 13, 2013

Filling the Justice Gap: Access to Justice and Human Rights at Home

by Risa E. Kaufman, Sherie Gertler, Mickey Hubbard and Rumbidzai Maweni

Last week in New York, as the city continued its slow recovery from the storm, the United Nations' expert on extreme poverty and human rights presented a powerful report on access to justice. "Access to justice is a human right in itself, and essential for tackling the root causes of poverty," Magdalena Sepúlveda Carmona explained to the U.N. General Assembly, outlining obstacles which prevent people all over the world from having recourse to the legal system. A key barrier she addressed is lack of legal representation in civil cases where basic needs are at stake. Such representation, she noted, is a "fundamental prerequisite" for ensuring fair and equal access to the legal system.

The issue confronts poor and low-income people around the globe and close to home. Indeed, millions of Americans lack legal representation when facing crises such as eviction, foreclosure, workplace discrimination and loss of child custody. Although the U.S. Supreme Court has pronounced the right to counsel in the criminal context, it has failed to establish a similar categorical protection for individuals in the civil context. The result is a crisis in unmet civil legal needs: less than one in five low-income persons in the United States obtains the necessary legal assistance.

Recognizing the need to address this gap, the United States pledged at a U.N. conference on the rule of law in September to improve access to justice for those who cannot afford legal representation and develop special initiatives to protect the rights of women and girls. Honoring this pledge would bring the U.S. into closer compliance with international standards on access to justice and strengthen the protection of human rights at home.

Although the U.S. has ratified two core human rights treaties that protect equal access to justice, including the right to legal representation in civil cases, attempts by the U.S. to meet its international commitments and fill the justice gap fall short. The Legal Services Corporation (LSC), an independent nonprofit entity established by Congress to provide legal assistance to low-income Americans, is woefully underfunded and hampered by crushing restrictions on who LSC lawyers can represent and the types of advocacy they can employ. The promising federal Access to Justice Initiative (ATJI), established by the Obama administration within the Department of Justice, faces institutional and resource constraints on its ability to comprehensively address civil legal services.

Although the states have made strides to close the justice gap through statutory provisions and court decisions creating a right to counsel in certain cases (such as termination of parental rights, paternity and mental health commitment) and through innovative pilot programs for free civil legal services, a more comprehensive and coordinated approach nationwide is necessary and the federal government can do much to lead this charge.

First, Congress can and should fully fund the LSC and lift the restrictions that prevent legal services lawyers from providing the full array of necessary services to their clients. In addition, the administration should intensify ATJI's activities with respect to civil legal services providers, and the initiative should receive the necessary funding and other support to reach its full potential. The federal government should support research to determine how the provision of counsel can improve the accuracy of outcomes and save money in various types of civil cases, like those addressing homelessness and domestic violence. And it should support and coordinate state efforts to implement a comprehensive right to counsel in civil cases by funding state access-to-justice initiatives and disseminating states' "best practices" regarding appointment of counsel. Finally, Congress should enact legislation to establish a right to counsel in federal civil cases implicating human needs and in alien removal proceedings.

As the U.N. expert on extreme poverty and human rights explained in her report to the General Assembly, legal representation is fundamental to safeguarding fair and equal access to the legal system. By ensuring that people who are poor and low-income have legal counsel in civil cases where basic human needs are at stake, the United States has the opportunity to set an example on the global stage while improving lives at home.