How the High Cost of Justice Pushes the Poor Into Prison

In the American justice system, there’s often an assumption that if you can’t afford a lawyer, one will be provided for you. But thousands of Americans arriving in court each year over family disputes, domestic violence, eviction, foreclosure, denied wages, discrimination on the job, and an array of other civil issues have no right to counsel. If they can’t afford a lawyer, they’re on their own to face a system that is often confusing and riddled with fees. For poorer citizens, the cost of seeking justice often becomes so prohibitive they just give up.

Even as criminal justice reform and the reduction of mass incarceration gain support across party lines, civil rights advocates warn that the inaccessibility of the civil justice system tends to channel people into the criminal system. Those with no access to the courts are more likely to take justice in their own hands, lose homes, or face incarceration over failure to pay child support or fines they can’t afford. For some, denials of justice in civil cases can lead to crimes of survival.

A national survey published by the National Center for Access to Justice this week found that people in poverty have virtually no access to civil aid attorneys — only .64 are available per 10,000, as opposed to an average of 40 lawyers per 10,000 people in the general population. “I don’t think most people appreciate how high the stakes are in our civil justice system,” said David Udell, executive director of the group. “The justice system on the civil side has to work in order to reduce conflict. If the civil justice system doesn’t work, there is a slope that leads into the criminal justice system.”

Civil legal aid attorneys — only 6,953 out of some 1.3 million lawyers nationwide — are funded by a combination of federal, local, and private money, but with some 21 million new civil cases filed every year, a majority of poor people seeking civil legal aid are turned down.

In its 2011 decision Turner v. Rogers the Supreme Court reiterated the longstanding principle that government has no obligation to provide free legal counsel in civil matters and ruled out a publicly appointed defense for a man facing jail time over his failure to make child support payments. Yet the court also declared that states must ensure court procedures are fair to those who can’t afford representation.

That shifted the burden to the courts, tasking them with making the legal system more accessible, for example by incorporating technology to help those representing themselves, using “plain English” in legal procedures and documents, and calling on judges to explain expectations to people without a lawyer.

So far, only a handful of states have moved to eliminate barriers to civil justice: among them, California and New York have introduced computer-assisted programs for court papers that help people fill out documents by asking them questions. But for the most part, major obstacles remain for the poor. Only 12 states, for instance, require courts to inform people that they don’t have to pay court fees if they can’t afford them — fearing daunting costs, many just give up on their claims.

Unaffordable justice is not only an issue in civil matters, of course. Poor — and minority —Americans are disproportionately represented across the entire justice system. In criminal cases, the disproportion grows between jail and prison populations, as poor people jailed while they await trial are regularly unable to meet bail.

A report published earlier this week by the Prison Policy Initiative singled out high bail as the largest factor driving pretrial incarceration, noting that 37 percent of those held in jail made less, annually, than the median bail amount of $10,000. For the average jail detainee, that’s about eight months of income.

That means that while in theory justice applies equally to all Americans, in practice, the cost of liberty is far higher for the poor — leading to unnecessary detention in often overcrowded jails, causing poor defendants to miss and lose work, burdening them with “pay to stay” costs as they are charged for their own incarceration, and ultimately trapping them in a crippling cycle of debt and detention.

That’s not only senseless — it is also illegal. After the United States banned debtors’ prisons at the federal level in 1833, most states also banned the practice, yet imprisonment for nonpayment of child support, alimony, fines, traffic tickets, and other state-mandated forms of debt remains widespread. As the protests in Ferguson, Missouri, dramatically exposed, local governments across the country have often relied on tickets and fines to fund their budgets, a practice so common that the DOJ’s civil rights division recently issued a memo reminding courts of the basic constitutional principles of due process and equal protection. The memo also reminded “court leaders” that profiting off indigent defendants is illegal, and that funding government on the backs of poor citizens has a deeply damaging impact on public trust in its institutions.

Restoring trust in those institutions might start with making sure that they are truly accessible to all, and that justice, civil or criminal, is equal in practice as well as in principle.