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Civil legal aid and indigent public defense are separate systems. There is no national legal aid budget. At the Federal level, the legal Services Corporation (LSC) funds part of the state based civil legal aid system. The federal Criminal Justice Act funds the federal defender system for federal criminal cases. Local public defender offices and private attorneys receiving court appointments or under contract provide defense in state criminal cases. These are state and locally funded. The US does not have a national defender system for state criminal cases, which are the vast majority of criminal cases in the US. Access to justice activities are primary state activities.
There have been many studies about access to justice and civil legal services. For example, in 2017, a study by the Legal Services Corporation (LSC) found that 86% of the civil legal problems reported by low-income Americans in a given year receive inadequate or no legal help.1 According to the American Bar Association, “[m]ost people living in poverty, and the majority of moderate-income individuals, do not receive the legal help they need.”2 It is estimated that in the state courts at least one party is self-represented in approximately three quarters of civil cases.3 Another estimate indicates that more than 30 million people per year appear without legal representation in America’s state courts, handling matters on their own that result in court orders determining such things as where they can live and when they can see their children.4Without legal assistance, these litigants are at risk of suffering dire consequences for their families, their homes, and their livelihoods.5
In 1974, the Legal Services Corporation was created by Congress to provide civil legal; assistance to low-income people. In 2018, LSC provided some legal assistance to one, 8 million people in households but, as the study above shows, this is far short of those with legal needs who are eligible for services.
While there is a right to counsel in felonies (Gideon v. Wainwright 372 U.S. 335 (1963)), delinquency cases involving juveniles (In re Gault, 387 U.S. 1 (1967)) and misdemeanor prosecution of adults (Argersinger v. Hamlin, (1972)) the promise of Gideon has not been achieved. Accused persons who are unable to afford counsel do not receive the same somewhat competent, well-supported, conscientious lawyer every person of financial means seeks to retain when charged with criminal conduct and faced with a loss of liberty.6
Unlike criminal cases, in the United States, there is no general right to state-funded counsel in civil proceedings. See Lassiter v. Department of Social Services, 452 U.S. 18 (1981) and Turner v. Rogers, 564 US 431 (2011)
However, state courts and state statutes or court rules, as well as some federal statutes, have provided the right to counsel in several categories of cases including termination of parental rights, adoption, and other areas. See ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings and the National Coalition for a Civil Right to Counsel (NCCRC) 1 interactive map http://civilrighttocounsel.org/map. Recently, several cities have adopted a right to counsel in eviction proceedings including: New York City, San Francisco, Cleveland, Los Angeles Philadelphia, Baltimore, and Boulder. Newark adopted a right to counsel law but has not yet funded it.2 DC has an extensive and well-funded program to represent low-income tenants.
Neither the federal government nor state governments have definitive responsibility for access to justice policy.