In middle school, and again in high school, when I learned about Gideon v. Wainwright, the 1963 case that went to the Supreme Court and gave defendants in legal cases a constitutional right to a lawyer, I don’t think I ever really thought about it. I mean, I think I understood the virtue in reaffirming the constitutional basis of the right to legal counsel in criminal cases. What I didn’t understand, though, is who Gideon leaves out.
At the core of Gideon, at its most naked foundation, is the notion that our nation’s poorest people— especially our nation’s poorest people—deserve equal and adequate representation. Yet in civil cases, that notion doesn’t hold: there exists no legal or constitutional right to a free defense.
In the D.C. area and context, this legal inconsistency—omission, even—has risen to the surface in the form of a bill proposed by city councilmember Kenyan McDuffie (D-Ward 5) that would provide free legal defense for D.C.’s poorest residents in specific housing cases. The bill has widespread support in city council, but means for funding of the proposed program has yet to be flushed out.
The New York City council held a hearing in September for a proposal that would give counsel to low-income residents in eviction cases. Both pieces of legislation, in fact, are part of a growing nation-wide movement called “civil Gideon,” which, as the name suggests, seeks to expand the constitutional rights set in stone in Gideon to all civil cases.
Undoubtedly, this movement and the ideas that undergird it have its strengths, first amongst which is the institutionalization of the belief that all people have the right to a defense in civil cases germain to their housing, to their families, and to their financial stability. It has too its weaknesses, primarily in the specific avenues of funding for such a large scale increase in state-provided, or at least state-facilitated, legal defense.
Regardless of these strong points and flaws, what “civil Gideon” drives at is the shocking exploitation of poor people (usually of color) in our system of law. Most materially, this exploitation manifests itself in evictions or heavy, oftentimes long-term, fines levied on tenants who cannot afford them. In fact, in a 2016 study conducted by Fordham University’s National Center for Access to Justice, “there is less than one civil legal aid attorney to help every 10,000 Americans living in poverty.” To put that another way: that’s one civil legal aid attorney to help fight for every 10,000 Americans trying to avoid eviction; one civil legal aid attorney to help fight for every 10,000 Americans seeking to come to fair and reasonable means to support themselves and their families in issues of divorce or custody; one civil legal aid attorney to help fight for every 10,000 American veterans trying to get VA benefits and understand, let alone operate in, the extraordinarily complex claims system.
Ta-Nehisi Coates and countless other journalists and historians have documented the ways in which, through policy supported by progressives and conservatives, southerners and northerners alike, African Americans, people of color, and people of poverty in this country have been denied access to housing, the most fundamental gateway to wealth accumulation and social mobility, through policies like redlining and restriction of housing rights for formerly incarcerated citizens.
What’s overlooked in that conversation—a conversation of the utmost vitality, that needs to happen more frequently and more seriously—is the way in which those African Americans, those people of color, those people of poverty who do break the many and ubiquitous barriers and layers of housing discrimination, manifested in policies related to purchasing, are then stripped of that housing. The way in which the holy grail of American wealth, the promise of the Dream, the key to mobility is degraded, is denied, is destroyed for thousands of Americans. And the way this degradation, this denial, and this destruction is not done passively or without thought, but instead as the result of a decision not to arm our most vulnerable brethren with the means to defend themselves.
I think “civil Gideon” is incredibly complex; little research exists on its efficacy, or even its pragmatism. What I know is that it is morally reprehensible, politically embarrassing, and, in total, evidence of economic plunder for every 10,000 poor Americans to be represented by only one civil legal aid attorney. I believe deeply in councilmember McDuffie’s proposed legislation, and more deeply in the need for Georgetown students, DC residents, and citizens of this country to take seriously in dialogue the conversation of “civil Gideon. In our continued failure to do so is the perpetuation of the degradation, the denial, and the destruction of basic rights to all Americans.