By Marco Poggio for Law360
President Joe Biden will use his executive power to expand access to publicly funded legal representation for the poor, the White House announced Tuesday.
Biden is directing the U.S. Department of Justice to come up with a plan to boost federal aid to publicly funded legal services, in a bid to allow low-income people wider access to counsel in criminal and civil matters, according to a statement.
“Timely and affordable access to the legal system can make all the difference in a person’s life,” the statement said. “But low-income people have long struggled to secure quality access to the legal system.”
Public defenders and civil legal aid providers have been severely underfunded, limiting access to justice by people living in poverty, a situation that has only gotten worse during the COVID-19 pandemic, the White House said.
In a memorandum, Biden said the coronavirus pandemic “has further exposed and exacerbated inequities in our justice system, as courts and legal service providers have been forced to curtail in-person operations.”
“These problems have touched the lives of many persons in this country, particularly low-income people and people of color,” Biden said.
Biden’s memo gives Attorney General Merrick Garland 120 days to outline a plan to expand the department’s access-to- justice initiatives.
“The DOJ has a critical role to play in improving the justice delivery systems that serve people who cannot afford lawyers, and I am committed to reinvigorating that work,” Biden said. “The attorney general shall consider expanding DOJ’s planning, development, and coordination of access-to-justice policy initiatives, including in the areas of criminal indigent defense, civil legal aid, and pro bono legal services.”
The memo also reestablishes the White House Legal Aid Interagency Roundtable. Formed in 2012 and launched 2015 as a White House initiative, the task force is a joint effort of over a dozen federal agencies working together to study the impact of civil legal aid on issues such as employment, public safety, housing and family stability.
“My administration is committed to ensuring that all persons in this country enjoy the protections and benefits of our legal system,” Biden said. “Reinvigorating LAIR as a White House initiative is a key step in this direction.”
Garland is expected to issue his own memorandum directing the DOJ to start working on the issue. The White House and DOJ did not respond to comment requests regarding the executive action.
In his proposed budget, Biden pledged to give $1.5 billion in funding to state and local justice systems to expand access to justice, including by investing in public defenders.
The need for civil legal services has become dire during the pandemic, as millions of people have lost their jobs and many struggle to pay rent. Despite eviction moratoriums, people still find themselves in eviction proceedings without legal representation.
In February, the Legal Services Corp. asked Congress to earmark up to half a billion dollars to keep funding badly needed civil legal aid to help low-income people navigate legal issues prompted by the pandemic.
The memo cited a 2017 study by Legal Services Corp. showing low-income people receive inadequate legal representation in over 80% of the civil legal matters they face in a given year.
“All too often, unaddressed legal issues push people into poverty. At the same time, in the criminal legal system, those who cannot afford private counsel often receive a lower-quality defense because public defender caseloads are overburdened,” Biden said in the memo.
Public legal representation is mandated by the federal government. In 1963 in Gideon v. Wainwright , the U.S. Supreme Court ruled that under the Sixth Amendment, states must provide a publicly funded lawyer to a criminal defendant who can’t afford one. However, the federal government never determined how to fund such representation.
Don Saunders, a senior vice president at the National Legal Aid & Defender Association, the country’s oldest and largest nonprofit organization advocating for public legal representation, welcomed Biden’s executive action as an important first step to shore up resources for legal aid.
“We’re very excited to see a former public defender be in the White House talking about the need at the federal level to look at some of the disparities in our criminal justice system, where our Constitution guarantees access to counsel,” Saunders said. “This was very high on our list of things we wanted to see them do.”
During the Obama administration, the federal Office for Access to Justice sought to improve access to counsel and worked with federal agencies to coordinate legal services and study the impact of the justice system on indigent citizens.
The office was eliminated by the Trump administration in 2018. After Biden was elected, advocates and lawmakers pleaded with the new president to bring it back.
Saunders said reestablishing the White House Legal Aid Interagency Roundtable is good news to legal aid providers.
“We worked very closely with those folks,” Saunders said. “They were able to make enormous progress in convincing other federal agencies what an asset they had in the legal aid system.”
Saunders said the task force has proved effective in boosting legal services in matters such as housing, domestic violence, civil rights, access to health care and consumer protection, and for veterans facing homelessness.
Rep. Mary Gay Scanlon, D-Pa., who co-chairs the Congressional Legal Aid Caucus, welcomed Biden’s executive action.
“Equal justice under the law cannot be achieved when the deck is stacked against those who do not have access to counsel,” Scanlon said in a statement. “I am hopeful that President Biden’s new directive will put us back on a path toward expanding opportunities for representation and ensuring equity in our justice system.”
Michael Wildes, the mayor of Englewood, New Jersey, and a former federal prosecutor who is now a managing partner at Wildes & Weinberg PC, said Biden’s plan will help provide crucial funding for public defenders who are often overburdened with high caseloads.
“Public defenders have very little time to devote to each client, which creates an incentive to pressure defendants to take plea deals even when the defendants do not wish to plead out,” Wildes said. “I am very much in favor of easing the burden on public defenders.”
Wildes clarified that the president’s executive action doesn’t call for public defenders in immigration courts.