Legal aid in the United States is the provision of assistance to people who are unable to afford legal representation and access to the court system in the United States. In the US, legal aid provisions are different for criminal law and civil law. Criminal legal aid with legal representation is guaranteed to defendants under criminal prosecution (related to the charges) who cannot afford to hire an attorney. Civil legal aid is not guaranteed under federal law, but is provided by a variety of public interest law firms and community legal clinics for free (pro bono) or at reduced cost. Other forms of civil legal aid are available through federally-funded legal services, pro bono lawyers, and private volunteers.
Criminal legal aid
Before 1932, there was no mechanism for legal aid for criminal defendants. Modern criminal legal aid developed from a series of landmark court decisions throughout the 1900s. In Powell v. Alabama, nine black youths from Alabama, also known as the "Scottsboro Boys", were not appointed counsel during a 1932 sexual assault case. Two white females, Victoria Price and Ruby Bates, claimed that these men raped them, bringing them to court. During trial however, testimony and evidence from the medical examination of these women refuted the rape charges. Although they faced capital punishment, the "Scottsboro Boys" did not have the opportunity to see an attorney. Most were illiterate, and none had any knowledge of criminal law. All criminal defendants, except for one, were sentenced to death.
Eventually, the case reached the U.S. Supreme Court, where in a vote of 7-2, the Court overruled the conviction of the "Scottsboro Boys".Powell v. Alabama, 287 U.S. 45 (1932) The Court stated the trial court's actions denied them the right to counsel in criminal cases under the Sixth Amendment. This case marked the first time that the Court reversed a state court conviction because there was a failure to appoint counsel.
The Supreme Court clarified Powell in Betts v. Brady (1942). Betts concerned a criminal defendant indicted for robbery in Maryland. However, he could not afford counsel and requested one, which was ultimately denied by the trial judge. The majority in Betts reasoned that individual states assigning counsel to indigent defendants was not required unless there are special circumstances like being illiterate or mentally challenged. Instead, the Court considered Powell's holding to apply only in federal courts. Therefore, denying the defendant's request did not violate the Fourteenth Amendment Equal Protection Clause.
In 1963, Gideon v. Wainwright reconsidered the Betts decision. Gideon was charged with breaking and entering, a felony under Florida law. He appeared at trial without an attorney and requested for one, but was denied by the judge. Despite representing himself during trial, the jury found Gideon guilty and sentenced him to five years. He eventually appealed to the U.S. Supreme Court where the Court asserted that criminal defendants have the fundamental right to counsel in all cases, without regard for financial circumstances.Gideon v. Wainwright, 372 U.S. 344 (1963). They unanimously found that the Sixth Amendment right to counsel for defendants is "fundamental and essential to fair trials" in the United States, noting that "any person … who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."
These landmark cases led to the creation of public defenders at the state and federal level. Today, the federal government and some states have public defender offices who represent indigent defendants—people who cannot afford attorney fees. At the federal level, there are over 80 federal defender organizations, while at the state level there are over 500 local defender offices. While public defenders receive funding from the government, they must remain ethically bound and independent at all times when handling cases.
Civil legal aid
Unlike in criminal court, the United States federal government does not recognize a right to representation for those accused of civil offenses. This leaves a gap in access to attorneys, since the government will not appoint one even if you cannot afford it. As a result civil legal aid programs have emerged in order to provide free or affordable legal services to those who may lack access otherwise. Civil legal aid is run through both federally funded programs and pro bono, private organizations. However, the United States government specifically limits who federally funded legal aid organizations can represent, especially in the case of immigration status. Discussions and debates surrounding civil legal aid are shaped by this question of who truly deserves a right to representation.
Legal aid for civil cases is currently provided by a variety of public interest law firms and community legal clinics, who often have "legal aid" or "legal services" in their names. Public interest practice emerged from the goal of promoting access to equal justice for the poor and this was inspired from the legal services disparity amongst European immigrants. Such firms may impose income and resource ceilings as well as restrictions on the types of cases they will take, due to the sheer volume of potential clients and the general lack of funding for such work. Additionally, federally funded legal aid programs face significant restrictions in who they can represent, particularly in immigration-based cases.Common types of cases taken as legal aid include:
Denial or deprivation of government benefits Evictions Domestic violence Immigration status Discrimination
In 2006, the American Bar Association (ABA) adopted a resolution that defined such issues as "basic human needs", and urged the Federal government to provide legal services in such instances. Thus, some legal aid organizations serve as outside counsel to small nonprofit organizations that lack in-house counsel. The ABA, is also encouraging private attorneys to spend time on pro bono work. Based on its model rule 6.1, “A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.” Currently, 10 states mandate attorneys to report their pro bono hours. While these rules emphasize the importance of pro bono work, the responsibility of lawyers extends even further. According to Chesterfield H. Smith, former ABA president, "the entire legal profession still has a duty to donate its efforts toward problems beyond those of the poor. The primary onus on lawyers now must be to make society better by using their special and unique skills in the public interest." In an additional report, the ABA explores the gap in access to justice for immigrants in particular. With illegal immigration being considered a civil offense, government appointed representation is not provided to defendants in deportation and other immigration related hearings. In their report, the ABA calls for a right to representation for all immigration cases in order to preserve fundamental due process protections.American Bar Association, Ensuring Fairness and Due Process in Immigration Proceedings (Washington, DC: American Bar Association, n.d.), 1–4. Discourse surrounding legal representation as a right and not a privilege has significantly shaped policies and protections surrounding legal aid.
Most typical legal aid work involves counseling, informal negotiation, and appearances in administrative hearings, as opposed to formal litigation in the courts. However, the discovery of severe or recurring injustice with a large number of victims will sometimes justify the cost of large-scale impact litigation. Education and law reform activities are also sometimes undertaken.
History A concerted movement towards substantive civil legal aid programs in the United States did not develop until the mid-1900s. The first legal aid office was founded in lower Manhattan in 1876 in an effort to protect German immigrants from exploitative housing and employment situations. Known as Deutscher Rechts-Schutz Verein, the organization began by serving German immigrants before expanding their services and renaming as the Legal Aid Society in 1896. At the time, legal aid offices served mostly European immigrants, seeking to "Americanize" them through naturalization. Nonwhite immigrants were often seen as unable to assimilate and therefore ineligible to naturalize, resulting in a major lack of accessible legal services. It was not until the War on Poverty era of the 1960s and 1970s that legal aid programs expanded their services through support from the federal government. By 1965, there were around 157 legal aid organizations across the country, serving almost every major city. The growth of legal aid services during this time highlighted an increasing understanding that access to justice is closely linked to larger social issues such as poverty. Significantly, the Office of Economic Opportunity (OEO) Legal Services Program in 1965 is a landmark that put forth an innovative goal: “legal services were to function not only as a treatment for the symptoms of poverty — a remedy, so to speak, for the lack-of-a-lawyer pain — but also as an active agent in the struggle against the poverty disease itself. While these changes helped improve civil legal aid to fight poverty, the courts approach took a different turn. The landmark Supreme Court decision Gideon v. Wainwright guaranteed the right to counsel in criminal matters, but left the issue of civil aid unresolved. Critically, following Gideon v Wainwright, the Court did not extend a guarantee of legal aid to civil matters in Lassiter v Department of Social Services, holding that the provision was less necessary in matters where liberty was not at stake.Lassiter v. Department of Social Services, 452 U.S. 18 (1981) However, many policy makers and activists highlight the fact that many civil proceedings, deportation cases in particular, threaten the liberty and freedom of the defendant. Significant discourse and debate has arose surrounding whether or not counsel should be appointed in these cases.
The movement towards extending Gideon to civil matters continues to gain momentum, even as states such as New York and California lead the way in establishing more substantive legal aid systems. Today, scholars reveal that there is still a long way to go; they point out that globally, the United States ranks 107th out of 142 countries -- and last among countries in its income bracket -- in its citizens’ ability to access and afford civil justice.
Prominent figures and institutions Reginald Heber Smith is one of the most influential figures when it comes to legal aid in the United States. He is most well known for his 1919 book Justice and the Poor. In this book, he was critical of legal aid in the U.S., according to legal scholar John M.A. DiPippa. DiPippa wrote “For Smith, the true dawn of "modem legal aid work" happened in 1890, when Arthur Von Briesen took over the management of the German Legal Aid Society, dropped the "German" reference, and began publication in English, thereby broadening its scope beyond German immigrants.” He also believed geographical coverage should be expanded and that legal aid societies should take in a broader range of cases to address more legal issues at hand. This led him to say that the government should address this issue by funding it. The framework and critiques he provided in his book would go on to be adopted in the future, first in the Legal Services Program (LSP) of the Office of Economic Opportunity (OEO), and then later within the Legal Services Corporation (LSC).
Office of Economic Opportunity (OEO)