Civil Rights and Discrimination Commons^™

A Better Way: Uncoupling The Right To Counsel With The Threat Of Deportation For Unaccompanied Immigrant Children And Beyond, Laura Barrera

Journal of Civil Rights and Economic Development

(Excerpt)

The stakes could not be higher in immigration court—families are separated; people are banished from their communities with little hope of ever legally returning; judges relegate individuals to seemingly arbitrary and indefinite detention in remote locations. Each of these hardships—and more—flow from the threat of deportation. As the Supreme Court noted in 1922, deportation “may result . . . in . . . all that makes life worth living.”

As has been the unfortunate norm in civil proceedings, many individuals face these trials without an attorney by their side because while the law states that respondents in immigration court …

Expanding The Right To Counsel In Eviction Cases: Arguments For And Limitations Of "Civil Gideon" Laws In A Post-Covid 19 World, Jennifer S. Prusak

Journal of Civil Rights and Economic Development

(Excerpt)

With the cost of housing rising nationwide and incomes largely failing to keep pace with this increase, the United States is in the midst of interrelated affordable housing and eviction crises. The housing affordability metric that has long been the bedrock of American housing policy is that households should spend no more than thirty percent of their income on housing. This is no longer an attainable goal for many Americans. By 2017, forty-eight percent of renter households were “rent burdened”—they paid more than thirty percent of their income in rent. Over a quarter of American renters, or 11 million …

Patching The Patchwork: Moving The Civil Right To Counsel Forward With Key Data, Maria Roumiantseva

Journal of Civil Rights and Economic Development

(Excerpt)

While the pandemic has exposed many long-standing realities about the United States, the destructive everyday crisis of eviction is top of mind as moratoria have now expired and rental assistance funds dissipate with no anticipated replenishment. Therefore, though this piece addresses legal representation in civil legal proceedings more broadly, we will start with an eviction story.

It can be taken as fact that not too far from where you are reading this piece, a tenant is facing an eviction unrepresented. She cannot afford a private attorney. She is income eligible for legal aid, but the office near her home …

Inviting The People Into People's Court: Embracing Non-Attorney Representation In Eviction Proceedings, Gregory Zlotnick

Faculty Articles

Evictions often hide in plain sight-and so does one of the most effective responses. Studies uniformly confirm that represented tenants avoid evictions, and with it associated downstream effects, at appreciably higher rates than unrepresented tenants. Tenant representation is one of the most cost-effective anti-poverty interventions available in our housing system. Lawyers should support its expansion, even if and when it a non-lawyer serves as that intervenor in eviction court.

This paper argues that the legal profession should embrace and expand existing pathways for training eligible and interested individuals, regardless of whether they are licensed attorneys, to assist tenants facing eviction. …

Civil Vs. Criminal Legal Aid, Shaun Ossei-Owusu

All Faculty Scholarship

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear …

The Expansive Reach Of Pretrial Detention, Paul Heaton

All Faculty Scholarship

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention …

Non-Merit-Based Tests Have No Merit: Restoring District Court Discretion Under § 1915(E)(1), John R. Fitzgerald

Notre Dame Law Review

This Note evaluates the circuit split regarding the provision of counsel in prisoner civil rights cases and proposes a uniform test. Part I describes the historical background of the right to counsel and prisoner litigation in the United States. Part II outlines the current circuit split regarding § 1915(e)(1). Part III explains why all district courts should consider merit and substance, using a case study to illustrate the deficiencies of non-merit-based tests. Part IV demonstrates why merit and substance are the best metrics for deciding when to provide counsel. Ultimately, this Note asserts that all district judges should consider: (1) …

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …

Evicted: The Socio-Legal Case For The Right To Housing, Lisa T. Alexander

Lisa T. Alexander

Matthew Desmond's Evicted: Poverty and Profit in the American City is a triumphant work that provides the missing socio-legal data needed to prove why America should recognize housing as a human right. Desmond's masterful study of the effect of evictions on Milwaukee's urban poor in the wake of the 2008 U.S. housing crisis humanizes the evicted, and their landlords, through rich and detailed ethnographies. His intimate portrayals teach Evicted's readers about the agonizingly difficult choices that low-income, unsubsidized tenants must make in the private rental market. Evicted also reveals the contradictions between "law on the books" and "law-in-action." Its most …

Evicted: The Socio-Legal Case For The Right To Housing, Lisa T. Alexander

Faculty Scholarship

Matthew Desmond's Evicted: Poverty and Profit in the American City is a triumphant work that provides the missing socio-legal data needed to prove why America should recognize housing as a human right. Desmond's masterful study of the effect of evictions on Milwaukee's urban poor in the wake of the 2008 U.S. housing crisis humanizes the evicted, and their landlords, through rich and detailed ethnographies. His intimate portrayals teach Evicted's readers about the agonizingly difficult choices that low-income, unsubsidized tenants must make in the private rental market. Evicted also reveals the contradictions between "law on the books" and "law-in-action." Its most …

What Gideon Did, Sara Mayeux

All Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

Officiating Removal, Leah Litman

Articles

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …

A Look At Civil Gideon: Is There A Constitutional Right To Counsel In Certain Civil Cases?, Jess H. Dickinson

University of Arkansas at Little Rock Law Review

No abstract provided.

Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn

Steven D. Schwinn

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument in federal constitutional …

Columbia Law School Human Rights Institute Joins Delegation At United Nations For Review Of U.S. Human Rights Record, Human Rights Institute

Human Rights Institute

New York, August 11, 2014 – This week, Columbia Law School’s Human Rights Institute (HRI) will travel to Geneva, Switzerland this week to participate in a significant review of the United States’ human rights record by the United Nations.

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …

Montes-Lopez V. Holder: Applying Eldridge To Ensure A Per Se Right To Counsel For Indigent Immigrants In Removal Proceedings, Soulmaz Taghavi

Soulmaz Taghavi

Part I of this Comment reviews the historical and current state of procedural due process and its role in Immigration Law, specifically removal proceedings. Part II extends certain legal arguments in the opinion of Montes-Lopez v. Holder, which held among divided federal Circuit Courts that an immigrant in removal proceedings has a statutory and constitutional right to appointed counsel. Last, Part III demonstrates how a non-citizen in deportation hearing has a per se right to counsel outlined by the Immigration and Nationality Act (INA) and brought to life by the Fifth Amendment’s due process clause.

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Deseriee A. Kennedy

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

A Justified Obligation: Counsel’S Duty To File A Requested Appeal In A Post-Waiver Situation, Lauren Gregorcyk

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Why Turner V. Rogers Was And Wasn’T Correctly Decided: How The Fourteenth Amendment Should Be Read For Child Support Contemnors, Gina Rose Lauterio

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Seen But Not Heard: Advocating For Children In New York State, Sarah L. Marx

Touro Law Review

On November 1, 2008, the New York State Bar Association House of Delegates approved a resolution affirming their commitment towards establishing a civil right to counsel in New York State. One of the issues identified is a child's right to representation not only in criminal, but also civil proceedings. Unlike other litigant groups, children have a statutorily established right to council in civil proceedings. However, as the white paper, adopted by the New State Bar Association, details, there are gaps in children 's advocacy throughout New York State. While significant steps towards improvement have recently taken place, there is still …

Special Populations: Mobilization For Change

Touro Law Review

This Article is based on a transcript of a break-out discussion which took place at An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, held at Touro Law Center, Central Islip, New York, in March 2008. The discussion was moderated by Karen L. Nicolson, Michael Williams, and Toby Golick.

This Article assesses the needs of various special populations and the possible strategies and solutions to create change through enacting a civil right to counsel. The Article is intended to capture information and viewpoints of the people who participated in the break-out discussion …

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize …

The Tipping Point On The Scales Of Civil Justice, Dennis A. Kaufman

Touro Law Review

The right to counsel in civil cases-metaphorically known as Civil Gideon-has gained traction in segments of the legal community, but advances have thus far been legislative, and while significant, adoption has been slow, less than cohesive or thematic and inconsistent across the country. Patchwork recognition and implementation by legislatures forms a fragile and uneven safety net. The availability of counsel is far from comprehensive. The preferred path to a comprehensive right to counsel in civil matters goes through the United States Supreme Court, but the Court refused to recognize a due process constitutional right to counsel in a civil matter …

Gideon Meets Goldberg: The Case For A Qualified Right To Counsel In Welfare Hearings, Stephen Loffredo, Don Friedman

Touro Law Review

In Goldberg v. Kelly, the Supreme Court held that welfare recipients have a right under the Due Process Clause to notice and a meaningful opportunity to be heard before the state may terminate assistance. However, the Court stopped short of holding due process requires states to appoint counsel to represent claimants at these constitutionally mandated hearings. As a result, in the vast majority of administrative hearings involving welfare benefits, claimants- desperately poor, and often with little formal education- must appear pro se while trained advocates represent the government. Drawing on the theory of underenforced constitutional norms, first articulated by Dean …

Sheltering Counsel: Towards A Right To A Lawyer In Eviction Proceedings, Raymond H. Brescia

Touro Law Review

This Article provides an overview of the current arguments presented by advocates who seek to establish a right to counsel for indigent tenants in eviction proceedings and assesses the strength of those arguments in the current political, social, and economic milieu. It is beyond question that the overwhelming majority of low-income tenants are unrepresented in proceedings in which their homes are in jeopardy and having counsel in such proceedings often prevents eviction and homelessness. Preventing those evictions reduces the human cost of homelessness, saves government substantial money by not having to provide shelter to the homeless, and preserves the stock …

In The Interests Of Justice: Human Rights And The Right To Counsel In Civil Cases, Martha F. Davis

Touro Law Review

This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called "Civil Gideon" right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther …

Current Developments In Advocacy To Expand The Civil Right To Counsel, Paul Marvy, Laura Klein Abel

Touro Law Review

Around the country, state and local bar associations, access to justice commissions, and local advocacy groups are working to expand the right to counsel in their jurisdictions. The passage of three statutes in the past three years is tangible evidence of their efforts. Many civil right to counsel advocates take as their mandate a resolution passed unanimously by the American Bar Association’s House of Delegates two years ago, calling on the government to provide counsel in cases in which “basic human needs are at stake.” This Article describes efforts underway in eleven states to expand the right to counsel, as …

Panel Discussion: International, National, And Local Perspectives On Civil Right To Counsel, Andrew Scherer, Martha F. Davis, Debra Gardner, Rosie Mendez, Juanita B. Newton, Adriene Holder, Laura K. Abel

Touro Law Review

The following is based on a transcript of a panel discussion which took place at An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, held at Touro Law Center, Central Islip, New York, in March, 2008.

Keynote Address: The Evolution And Importance Of Creating A Civil Right To Counsel, Wade Henderson

Touro Law Review

No abstract provided.