For every 6,415 people in the United States who qualify for legal aid (income at or below 125 percent of the poverty line), there is one legal aid attorney, leaving about three-quarters of low-income civil litigants in the United States unrepresented and creating an increasingly prevalent situation that some call a “justice gap.”
A study at the University of Wisconsin-Madison that was recently awarded a two-year $300,000 grant by the National Science Foundation is exploring questions confronting the legal profession in its effort to improve access to justice for low-income unrepresented civil litigants.
The new study, undertaken by Tonya Brito, professor of law at the University of Wisconsin-Madison, and David Pate, associate professor in the Helen Bader School of Social Welfare at the University of Wisconsin-Milwaukee, both of whom are affiliates of the Institute for Research on Poverty (IRP), is in the third and final stage of an ongoing qualitative research project that examines and compares how attorney representation and more limited forms of legal assistance shape legal access for low-income civil litigants.
The study is especially timely as the recent recession hit indigent people hard, multiplying the civil problems they tend to face, such as home foreclosures, evictions, social security disputes and nonpayment of child support. The investigators focus on nonpayment of child support and their new study is informed in part by decades of research on child support conducted by IRP researchers, including Brito and Pate.
Civil incarceration is commonly used as a remedy to enforce child support orders against indigent noncustodial parents, many of whom lack attorney representation.
Michael Turner of South Carolina, for example, is a low-income father who has been civilly incarcerated on six separate occasions for the same unpaid child support debt. When he was sentenced to 12 months in jail for willful failure to pay child support, Turner appealed, asserting a constitutional right to counsel.
The Supreme Court, in Turner v. Rogers, held that the Due Process Clause does not require appointed counsel in child support enforcement proceedings. The court held that states must, at a minimum, provide unrepresented litigants with “substitute procedural safeguards” (an array of legal assistance measures falling short of full representation) to ensure that the litigants have meaningful access to the courts. In the court’s view, the safeguards would significantly reduce the risk of erroneous civil incarceration.
Scholars have criticized the Turner ruling because it lacks an empirical base. Access to justice proponents disagree regarding whether attorney representation is essential or whether more limited legal assistance interventions that empower self-representation suffice in cases such as that of Michael Turner.
Brito and Pate’s NSF study will help inform these questions.
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