A Sad TANF Story That Should Never Have Happened

July 18, 2011

I got a call from someone who follows this blog — a homeless mother who lives in Rockville, Maryland. She hoped I could advise her.

I couldn’t, but I’d like to tell her story because it speaks to a couple of policy issues that ought to be high on the agenda — here in the District of Columbia and nationwide.

For reasons I hope are obvious, I’m not going to use my caller’s name. Let’s just call here N.

She’s working, but earning only $8.00 an hour. Absent father pays no child support. So she and her kids depend in part on the cash benefits they get from Maryland’s Temporary Assistance for Needy Families program.

The program is about to impose full family sanctions, i.e., to cut off their benefits entirely. This, it seems, on the recommendation of the contractor that delivers the program’s job-related services.

N said that partial sanctions were first applied when a caseworker who was fired didn’t tell his successor she’d been working. Another round of partial sanctions when the new caseworker failed to submit a routine report verifying that she had been.

Both times she was told not to worry. Everything would be fine. But the caseworker then said she hadn’t applied for a particular job, as instructed. N said she had and provided such proof as she could.

But the caseworker either wouldn’t or couldn’t reverse the full family sanctions decision. So N appealed. Appeal denied, which is hardly surprising since she was up against a large multi-state job services contractor and an agency equally committed to defending itself.

This is a fine illustration of what can happen when a state adopts a full family sanctions policy. All but five have one now. And the District is about to join them.

On the one hand, states — and the District — have strong incentives to impose full family sanctions. Legal Momentum cites several in federal policy. I’d add plain old budget constraints.

On the other hand, those same budget constraints can mean little or no oversight of the operations that state agencies contract out. Note how N’s caseworkers papered over the lapses — and impacts — of the partial sanctions.

But even the best system won’t prevent misunderstandings and mistakes. That’s why TANF programs should include a pre-sanctions conciliation process.

If the objective is truly to bring participants into compliance, then why rush to sanction when there could be remedies that wouldn’t leave them and their children without enough money to live on?

It’s also why strong due process protections are so important. If all else fails, TANF participants deserve advance notice of what they’re accused of and the sanction awaiting them — and in a form they can understand. They deserve an impartial hearing that lets them tell their side of the story.

That said, TANF participants are likely to be at a disadvantage when it comes to formal hearings and the like. So, I think, would most of us be.

Which brings me to another policy issue.

N’s story shows why we need well-funded legal services programs to advise and represent low-income people when they have to deal with the powers-that-be, including complex and often unfriendly bureaucracies.

As I’ve written before, nonprofit legal services programs have been struggling with a funding crunch for some time now.

Part of the problem is that Congress has consistently under-funded the Legal Services Corporation, which provides grants to somewhat over a third of the country’s 500 or so nonprofit legal services programs.

They and others have also fallen victim to state budget cuts — and, very importantly, a huge fall-off in income from IOLTA (Interest on Lawyers’ Trust Account) programs.

In 2009, the Legal Services Corporation reported that fewer than 20% of the legal problems low-income people experienced were handled with the help of an attorney.

The Corporation’s budget got cut by $15.8 million in the continuing resolution that’s keeping the federal government funded now.

So I had a sinking feeling when I gave N the contact information for the Maryland Legal Aid Bureau’s Rockville office.

She needed a lawyer — actually had needed one for some time. But what are her chances of getting help with what’s now an urgent and fairly challenging problem?

What chances will other poor moms have if the Senate goes along with the House of Representatives’ spending rollback plan?


DC Attorneys Oppose Legal Services Cut, But Some Don’t Want To Chip In

May 15, 2010

Yesterday’s Washington Post reports on a breakfast meeting DC Councilmember Michael Brown hosted to discuss the proposed new income tax brackets with residents who would be affected. Also to give them a clearer view of what the tax reform would mean for them personally.

Another aim, it seems, was to test the notion that wealthy residents would flee to the suburbs if their taxes increases. The Post article indicates that some of Brown’s guests debunked it. But “younger residents–mostly attorneys–were opposed” to the tax increase.

Meanwhile, more than half the practice sessions of the D.C. Bar have issued a public statement calling on the Council to reject the proposed cut in funding for the Access to Justice Program.

This is the program that provides free legal services for low-income District residents. It also supports a bank of interpreters for those who aren’t fluent in English and/or have a hearing disability. And it helps attorneys employed by nonprofit legal services organizations pay off their student loans, thus enabling them to work for relatively little pay.

Mayor Fenty has proposed a $1.8 million cut for the program–this on top of the $700,000 cut for the current fiscal year. Together, these would leave the program with only half the D.C. funds it had in 2009.

As I’ve written before, local legal services organizations have been hard hit by reduced funding from other sources. They’ve cut back on both full-time attorneys and staff that support the quantity and quality of legal services they provide. This at a time when even more people need their help.

So the attorneys in a broad spectrum of the D.C. Bar sections understandably want at least level-funding for the Access to Justice Program. Where do the attorneys who oppose a tax increase think the money’s going to come from?

Or maybe I’m seeing a paradox where none exists. Perhaps the up-and-comers at Brown’s breakfast voted against the Bar’s statement, feeling that a couple of hundred dollars of their handsome incomes were more important than equal access to justice.

Fortunately, there are partners at a number of our biggest law firms who are ready to invest in D.C. If you’re a lawyer, you can join your voice to theirs.


New Hope For Narrowing the Justice Gap

February 4, 2010

As I wrote awhile ago, civil legal services for low-income people are hobbled by two major impediments–inadequate funding and restrictions on what local legal services providers can do if they receive funds from the Legal Services Corporation.

The Corporation’s funding, in real dollars, has been declining since 1980, when its appropriation was sufficient to provide a “minimum level of access” to legal aid, i.e., two lawyers for every 10,000 low-income people in every county.

It was clear from the get-go that the Fiscal Year 2010 budget process wouldn’t do much about the funding problem. President Obama’s budget proposed $435 million for LCS–$45 million more than the Fiscal Year 2009 appropriation, but about $50 million less than LCS had requested.

The House of Representatives approved $440 million and the Senate $400 million. The negotiators ultimately split the difference. So LCS will have $420 million for the current fiscal year–about $345 million less than the Center for American Progress Action Fund estimated would be needed to restore minimum access.

But it did seem for awhile that this year’s budget process might significantly modify the restrictions. The President’s proposed budget included amendments to the Corporation’s authorizing legislation that would have allowed LCS grantees to seek attorneys’ fees in cases where they prevailed and to use non-LCS funds for activities that had been banned.

The House adopted the attorneys’ fees recommendation but left the remaining restrictions in place. The Senate lifted most of the restrictions on uses on non-LCS funds. On this matter, the House prevailed in the negotiations that led to the final bill.

But all is not lost. Congressman Bobby Scott (D-VA) and Senator Tom Harkin (D-IA) have introduced identical bills–the Civil Access to Justice Act (H.R. 3764/S. 718)–that would eliminate all restrictions on uses of non-LCS funds, except (wouldn’t you know it) participation in litigation related to abortion.

Permissible uses of LCS funds would also be broadened to permit collection of attorneys’ fees and participation in class action suits “grounded in existing law.” The prohibition on representing prisoners would be modified to permit litigation on issues related to a prisoner’s “ability to reenter society successfully.” And some non-citizens now denied representation could be served.

H.R. 3764 and S. 718 are technically bills to reauthorize LCS–something that should have been done 30 years ago. In addition to addressing the restrictions, they would also raise the permissible ceiling on appropriations to $750 million. This, the sponsors say, would be the equivalent, in inflation-adjusted dollars, to the last appropriation that met the minimum access standard.

Of course, authorizing this much doesn’t mean that LCS will get it. But the figure establishes a reasonable target and a benchmark for the next five years.

The bills aren’t perfect. But they would bring civil legal services for low-income people into much closer alignment to what other Americans can receive. And they would enable LCS-funded nonprofits to engage in actions that would effectively and efficiently address the needs of large groups of clients.

So I think they deserve our support. And they’re going to need it because it’s obvious that our elected leaders can’t deal with more than a couple of controversial issues at a time. And if past is prologue, “equal access to the system of justice in our Nation” won’t be one of them.


Low-Income DC Residents Face More Legal Problems, Fewer Services

December 30, 2009

I wrote awhile ago about the gap between low-income people’s needs for legal services and the capacities of legal aid programs to provide them. Now a report by the DC Access to Justice Commission and the DC Consortium of Legal Services Providers brings it all home.

It’s one of the most depressing reports I’ve read in a long time. And that’s saying a lot.

Last year, the DC Access to Justice Commission reported in detail on the range and types of civil legal services needed by low-income people in the District. It concluded that, even with the D.C. government funding approved for Fiscal Years 2007-8, “the needs of those who cannot afford a lawyer substantially outweigh the available services.” And that was before the recession set in.

As the new report says, low-income residents now face more severe hardships–and more legal problems. Legal services attorneys estimate a 20% increase in requests for help. Increased needs are probably greater.

Meanwhile, local legal assistance organizations are grappling with drastic funding reductions. In 2009:

  • The D.C. Bar Foundation had to cut its grant-giving in half because revenues from its usual source of funds–the Interest on Lawyers Trust Accounts program–plummeted due to the Federal Reserve Board’s cuts in interest rates.
  • Law firms and individual practitioners cut their contributions by as much as 20% due to declines in their business.
  • Firms also laid off associates and deferred hiring, thus reducing the availability of pro bono services.

Faces with less income, the organizations cut back on staff–both full-time attorneys and other staff whose work supports the quality and quantity of legal services provided. The network as a whole has lost the capacity to represent 1,050 clients and to provide less resource-intensive forms of help to an additional 2,100.

The organizations have adopted various strategies to cope with staff shortages. Many limit access or the types of services provided. By and large, cases involving complex issues, long-term representation and/or substantial resource commitments seem to have fallen victim to the need to provide some assistance to as many people as possible.

Resource constraints have also forced the organizations to limit efforts that can most effectively address the needs of large groups of clients–advocacy, systemic litigation and test cases. This is obviously a vicious circle, since resources committed to broad-based change would tend to limit the individual emergency needs that are now consuming all the resources.

Prospects for next year look even worse:

  • The District’s grant to the D.C. Bar Foundation, which channels funds to providers, has been cut by 20%.
  • Budgets for the DC Office for Victim Services and other agencies that provide grants for legal services have also been cut. Reported losses to providers exceed a total of $100,000.
  • Foundations that have struggled to sustain their funding for legal services will have to cut back due to significant declines in their assets.

Thus, the report says, the crisis in civil legal services representation will get worse before it gets better–unless there is substantial change.

How do we get there? First, I think, we need a much broader and deeper appreciation of why our community as a whole needs a robust legal services network.

The epigraph to the report, by Justice Learned Hand, puts it well: “If we are to keep our democracy, there must be one fundamental commandment: Thou shalt not ration justice.” That’s what we’re doing now–economizing at the expense of fairness, inclusiveness and shared prosperity.

Say what you will about tough economic times. I say it doesn’t have to be this way.


Lawyers For Low-Income People In Short Supply

November 28, 2009

Anyone who hasn’t led a charmed life knows how important it can be to have an attorney. They also know that private legal help doesn’t come cheap.

In 1974, Congress established the Legal Services Corporation to help provide free legal assistance in civil matters to those who otherwise couldn’t afford it. The Corporation receives federal funds through annual appropriations.

Most of these funds go to nonprofit local legal aid programs. Many of these programs also receive funds from state and local governments, private donors and/or their state’s Interest on Lawyers’ Trust Accounts program. This program gives them the interest on clients’ funds deposited in a separate account when the costs of investing them otherwise would exceed the return.

But there’s a large and growing gap between low-income people’s needs for legal services and the capacity of the programs to provide them. According to a recent LCS report:

  • For every client served by an LCS-funded program, another is turned away because of insufficient resources.
  • Fewer than one in five legal problems low-income people experience is addressed with help from an attorney.
  • There’s only one legal aid attorney for every 6,415 people below 125% of the federal poverty line, as compared to one attorney for every 469 people above it.
  • State courts, especially those that deal with issues affecting low-income people, are handling more cases involving a litigant without an attorney. A high percentage of these litigants qualify for legal aid.

The problem here begins with the federal budget. Like many well-intentioned programs, LCS has never been adequately funded. But up until 1981, it received enough to meet a minimum access standard, i.e., two lawyers for every 10,000 low-income people, in every county in the U.S.

Then came deep cuts, prompted by the Reagan administration’s hostility to the program. Though the budget has since been increased, it’s never recovered to minimum access level. According to a Center for American Progress brief, it would need about $765 million to do so–about double the current appropriation.

A second budget-related blow came when the Republicans gained control of Congress in 1994. Programs receiving LCS funds were prohibited from engaging in class actions or advocating for legal reforms, even with funds from other sources. This left them no choice but to litigate similar cases one at a time, rather than seek systemic remedies. They were also prohibited from seeking attorneys’ fees that could otherwise be claimed.

The recession has exacerbated the funding problem in various ways.

  • IOLTA revenues have plummeted because the Federal Reserve Board has slashed interest rates to unfreeze credit markets and stimulate spending.
  • Some state and local governments have cut their support for legal aid programs to help close their budget gaps.
  • Rising unemployment and cutbacks in hours have made more people eligible for free legal services.
  • More eligible people need help with problems like foreclosures, debt, access to public benefits, domestic violence and child support.

For Fiscal Year 2010, LCS requested $485.1 million–about $295 million less than would be needed to serve all those currently seeking help from the local programs it supports.

The House appropriations bill would provide $440 million. It would lift the restriction on attorneys’ fees, but leave the rest of the restrictions intact.

The Senate version would provide $400 million–just $10 million more than in Fiscal Year 2009. But it would lift most restrictions on grantees’ uses of non-LCS funds. Prisoners and (surprise!) women needing help with abortion issues would still be out of luck.

The Washington Post recommends that House-Senate negotiators adopt the best of both–the House funding figure and the flexibility afforded by the Senate. This won’t close the justice gap. But it’s probably the best we can hope for until the vital, unmet legal needs of poor people become a higher priority.


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