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"A Human Rights Lens on Civil Legal Assistance,"

by Martha Davis January/February 2011 issue of Poverty & Race

Studies indicate that about 80% of low-income Americans cannot obtain needed civil legal assistance. The unmet needs are often critical, as pro se litigants face eviction proceedings, cut-offs of subsistence benefits, or issues of domestic violence. Available data also indicate that the indigent individuals seeking civil legal assistance are disproportionately people of color.

In 2008, the United Nations Committee on the Elimination of Racial Discrimination recognized that this lack of access to civil representation transgresses United States' obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). To address this human rights violation, the CERD Committee recommended that the United States, “allocate sufficient resources to ensure legal representation of indigent persons belonging to racial, ethnic and national minorities in civil proceedings, with particular regard to those proceedings where basic human needs, such as housing, health care, or child custody, are at stake.”

In the two-plus years since the CERD Committee's review, the U.S. has taken few steps to comply with this recommendation. The Legal Services Corporation budget has risen slightly, but it still falls hundreds of millions of dollars short of what would be needed to ensure adequate legal representation of the indigent. Though Congressional hearings have touched on the issue, no concrete measures have emerged. Similarly, the Administration's Access to Justice Initiative has taken tentative steps to assist homeowners, veterans and workers in accessing pro bono attorney-mediators or legal services counsel, but these new programs are piecemeal at best and may fail to help many in the lowest income brackets. The Rule of Law Index released in October 2010 by the American Bar Association's World Justice Project reflects this lack of progress: The U.S. ranks below all other wealthy nations, and only slightly above Colombia, Thailand and Turkey, in providing access to civil justice.

In the absence of robust federal initiatives, individual states have begun developing affirmative plans that move in the right direction. For example, funded by state and local bar associations, Massachusetts has initiated a pilot project to provide access to counsel in certain types of housing cases. California will implement its own pilot project, beginning in Summer 2011, to provide civil counsel in cases involving basic human needs. In contrast to Massachusetts, the California project will be funded through court filing fees.

These are important and inspiring new programs, the result of a great deal of hard work. But to meet its international obligations to eliminate the discriminatory justice gap, the U.S. must do more. Human rights monitoring under CERD and other treaties provides an opportunity to continue to hold both federal and state governments accountable for improving access to civil counsel in cases involving important human needs, and for learning from other nations that are far ahead of us in ensuring nondiscriminatory access to the courts. The U.S.'s next submission to the CERD Committee is due November 2011.

Martha Davis is Associate Dean for Clinical and Experiential Education and Professor of Law at Northeastern Univ. School of Law.

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