Letter from Esther: Addressing “Structural Injustice”
The Wire
June 2011

In the social science and economic development fields commentators now focus on what they term “structural poverty.” Structural poverty is defined as “deprivation which is reinforced by administrative, economic and social barriers preventing access to new life skills, employment opportunities, improved health care and better housing.”

In thinking in the broadest terms about what is happening to the legal system in the United States (and abroad for that matter), I believe that we have reached a state of what I term “structural injustice.” Structural injustice, like its analog in poverty, creates administrative and economic barriers to the enforcement of rights that enable access to housing, health care, education, physical safety, employment and financial security, equal treatment before the law, and other fundamental protections.

Growth of a Crisis
For decades, legal services advocates for the poor and disadvantaged have utilized the courts, administrative agencies, legislatures, and other fora to create and enforce their clients’ rights. For much of that time, legal services programs have been in a state of crisis, as the number of low-income people in need spirals, the number and nature of their legal problems expand, and the human and financial resources of legal services, public interest, and pro bono programs decline. National and state studies of unmet legal need have consistently found that 80 percent of low-income Americans with serious life crises that could and should be resolved in the legal system cannot secure free legal assistance. Tragically, most of those studies predated the latest surge in the U.S. poverty population and reduction in funding for these programs. Imagine what the 80 percent figure is today.

Far more troubling, however, is the fact that the crisis in legal services has now mutated into a larger and more profound justice crisis. Our nation’s courts, mass justice agencies such as the U.S. Department of Veterans Affairs, and other entities charged with assessing and deciding legal claims are now experiencing their own funding and resource crises. State courts are furloughing staff, closing their doors, and experiencing extraordinary delays in hearing and deciding matters. In a court system premised on the assumption that each party will be represented by counsel, recent state studies reveal that the number of pro se litigants is increasing at an alarming rate: 30 percent or more in general civil matters, 80 percent and growing in divorce hearings, and in the range of 90-99 percent for tenants facing eviction from their homes. Even in the criminal justice area, where the decisions in Gideon v. Wainwright and its progeny were hailed as a vindication of Sixth Amendment rights, speedy trials are more a hope than a reality. Public defenders are bringing lawsuits arguing that the current lack of funding and crushing caseloads violate the Constitution. In short, every facet of the public justice system – from Federal courts to administrative agencies, public defenders to prosecutors, prisons to diversionary programs – is now in crisis, along with the delivery of civil legal services to the poor and disadvantaged. Hence my use of the terminology “structural injustice.”

A Broken System
Even if legal services funding increases or the level of pro bono participation skyrockets, the justice system, as currently constituted and operated, is a barrier to justice. And the current crisis may well beget a deeper crisis. As the courts cut back their operations and are viewed as inaccessible by more and more Americans, including those with average incomes as well as the poorest among us, public support for the funding to assist the courts and the public justice system, particularly in this economy, will inevitably decline as well. After all, why should people vote to support a system that does not work for them?

We must find a solution to this profound and dangerous crisis. That solution cannot be doing what we have done in the past – but less of it due to resource constraints. We must all fashion new solutions to address a very different crisis, one that will not resolve itself when and if the economic situation improves. What does that solution entail? I do not presume to have the answers, but I am inspired by some thoughtful experiments going on around the country that offer a fresh perspective and real hope for a new and more fruitful approach.

Hope for the Future
One example of these cutting–edge approaches are the projects being funded and implemented in California pursuant to the Sargent Shriver Civil Counsel Act, such as the Housing Pilot Project in Los Angeles. Three legal services programs – LAFLA, Inner City Law Center, and Public Counsel – will work with the Superior Court of Los Angeles County to provide services including full representation, self-help services, ADR, code enforcement services, and referrals to social services organizations to approximately 15,000 tenants facing eviction in a community where the vast majority are without representation. Why does this project, which has just been funded and is not even operational, make me so hopeful? Several aspects are noteworthy:

• Larger collaboration – It is all too common to have several (in larger cities, more than several) legal services organizations addressing the same legal problems with very little coordination or exchange of strategic information, let alone active and coherent collaboration. This experiment brings together programs that have not traditionally worked closely together, offering the benefits, both in terms of efficiency and effectiveness, of scale and strategic coordination.
• High level collaboration – The court is a critical player and partner in this effort. Recognition that the courts are an essential element of the solution, and that the delivery system must work for and with them as well is, shockingly, a relatively new development.
• A range of intervention – The project does not assume that full soup-to-nuts representation in eviction defense matters is the only or necessarily the most effective means of providing assistance. Rather, the project will utilize a range of tools tailored to the nature of the matter and the capacity of the clients. In addition to providing legal representation, the project provides funds for the courts to adopt innovative practices to ensure unrepresented parties get meaningful access to justice. It also requires the participating legal services agencies to identify and make use of pro bono services from attorneys in order to maximize available assistance efficiently and economically. All too often, we treat civil legal assistance, unbundled representation and pro se assistance, and pro bono as though they were three different elements.
• Targeted representation – All too often, we treat legal services matters as one big undifferentiated bundle of need, without the triage that crises and emergencies require. This project does not view all evictions and all defendants in those matters as one undifferentiated mass. Rather, those implementing the project have conducted research and have used hard data to identify and focus their efforts on three South Los Angeles zip codes where evictions predominate.
• Mandated evaluation – All of the Sargent Shriver pilot projects will be carefully evaluated. We can’t always assume we know what works and what doesn’t. Developing an evaluation methodology from the outset that is designed to determine what is working well, what is replicable, and what difference the legal work has actually made in defined metrics has always been important and undervalued. At a time when resources are so scarce and the system is so strained, evaluation is absolutely essential.

Some will say that these projects, like the pilots in Massachusetts and elsewhere, are outliers, that is, only possible because somehow their champions have found substantial new sources of funding. I would argue that designing and implementing creative new solutions responsive to new realities is the best way to attract additional funding.

The response to structural injustice has to be new structural solutions. Please become part of the solution!