Justice gap: three-fourths of low-income civil litigants unrepresented

For every 6,415 people in the United States who qualify for legal aid, there is one legal aid attorney. That means that about about three-quarters of low-income civil litigants in the United States are unrepresented, creating what some call a “justice gap.”

A two-year, $300,000 grant by the National Science Foundation is providing Wisconsin researchers with the opportunity to explore questions about the legal profession and justice for low-income, unrepresented civil litigants.

The 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, is in the third and final stage of an ongoing research project.

The study, according to the researchers, 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. 

Civil incarceration is commonly used as a remedy to enforce child support orders against indigent noncustodial parents, many of whom lack attorney representation. 

“During focus groups in the earlier stages of the study, child support attorneys confirmed that some low-income noncustodial parents experience a revolving prison door for indigent noncustodial fathers,” Pate said in a news release on the research.

“Child support enforcement proceedings offer an interesting and complex setting for exploring contrasting legal assistance models,” Brito said. “The proceedings are often cyclical; obligors experience multiple enforcement hearings for the same child support debt.” 

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.

“This project exemplifies the real-world application of the work of Institute for Research on Poverty researchers and faculty affiliates here at the UW and across the country,” said IRP Director Lawrence Berger. “Professors Brito and Pate’s examination of how various legal assistance delivery models shape access to justice for low-income civil litigants will provide the empirical base necessary for creating evidence-based policy and intervention.”