Washington Post Wants Lawyers for the Poor in Civil Cases

March 3, 2021 by Robert Franklin, JD, Member, National Board of Directors


At a place where liberals and conservatives should agree, this editorial gets a lot right, though incompletely (Washington Post, 2/26/21).  It’s about the right to legal representation for the poor and points out that, throughout a wide range of civil matters, the poor appear in court alone, adrift and unaware of even the basics of how to protect themselves and their interests.  The areas of law mentioned by the editorial include guardianship cases for the legally disabled, eviction cases, DV cases, parental rights cases, child support cases, adoption cases, etc.  Traditional liberals should be concerned about the plight of the poor in those matters; traditional conservatives should be concerned about the power of the state over the rights of individuals and the cohesiveness of the family.

The Post’s position is that the poor should have court appointed lawyers in all or most of those cases.  It rightly points out that extremely important rights and liberties are at stake and that state power must be blunted in court by lawyers representing those who otherwise would be unable to represent themselves.  We’ve done this for decades in criminal matters, as we should.  But the potential loss to an individual in a civil matter can be as great or greater than in criminal court.  Is a year in prison a worse outcome than the lifelong loss of a child?

I fully understand that this is just an editorial and, as a consequence, limited in the number of words it’s allotted.  So it can scarcely give full treatment to each of its subtopics.  Still, it gives far too short shrift to the issues of child support and child protection issues.  For example:

In child-support cases, defendants are routinely incarcerated, for days, weeks or months without recourse to legal assistance…

Nearly 1 in 8 inmates in South Carolina’s jails ended up behind bars over failure to make child-support payments, and very few of them had the assistance of a lawyer in court. 

That’s the extent of the article’s treatment of child support cases and, given the widespread misunderstanding of those matters by the general public, it fails to make its best case.  The editors should have told their readers that child support payments are routinely set at levels the non-custodial parents can’t pay.  Interest and fees increase those amounts often to the extent that even full payment of the ordered amount results only in the obligor falling further behind.  The overwhelming majority of child support obligors live in poverty.  Over 60% of them report earning less than $10,000 per year.  “Hearings” at which they’re supposed to convince a judge of their inability to pay often last five minutes or less.  Child support law often results in the marginalization of fathers in the lives of their children. Facts like that give more power to the argument that those people should be entitled to legal representation.

The editorial performs even worse when it comes to child protection issues.

Those cases include disputes in which the stakes could not be higher: forfeiture of parental rights; eviction or foreclosure; danger from abusive spouses and domestic partners; and, in guardianship cases, the loss of control over property, and even liberty.

The draconian tactics so often used by state CPS authorities, their power to take children from parents on the thinnest of pretexts, the blatant illegality of many of the tactics used to do so, the profound damage to children, the financial rewards meted out to states for doing so, the secrecy that shrouds CPS actions, the Stasi-like encouragement to inform on friends, relatives and neighbors, etc. are all boiled down to four words – “forfeiture of parental rights.”  Needless to say, that’s not enough.

For the past several years now, the movement toward reform of state CPS agencies and the laws and practices governing the taking of children from parents has gained momentum.  The Post’s editors surely know about much of that.  More importantly, the power of the state to shanghai a child away from its parents, often without cause, is the most awesome and frightening of state powers save only the power to take a person’s life or lengthy incarceration.  Parents rightly fear and loathe CPS.  If anyone deserves a lawyer, it’s poor parents fighting to retain custody of their children against the power of the state.  The Washington Post needed to deal with that in more detail.

Still, it’s a good piece that addresses the vital issue of individuals’ ability to litigate vastly important rights on a level playing field with their adversary, the state.

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