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.


Funds For Low-Income Home Energy Assistance Fall Short Of Need

January 7, 2010

Winter has hardly begun, and we’ve already had well-below-freezing temperatures–even here in Washington, D.C. I’m sitting in my warm study, thinking about the low-income households who are struggling to pay their home energy bills–or to get along without heat because their service has been cut off.

The federal Low-Income Home Energy Assistance Program (LIHEAP), is intended to help these households meet their immediate energy needs–both heat in the winter and cooling in the summer.

The program has helped save millions of poor seniors, people with disabilities, other adults and their children from the impacts of unaffordable energy bills–hypothermia and heat prostration, hunger, homelessness, unmet medical needs and deaths and injuries caused by fallbacks like space heaters and stoves. But as with the rest of our safety net, millions fall through.

LIHEAP provides block grants to states, which they channel to local government agencies or nonprofits. It also includes an emergency contingency fund that the Secretary of Health and Human Services can tap to provide extra assistance, e.g., in cases of extreme weather, spikes in energy prices or unemployment.

Households qualify for a one-time payment of their past-due utility bills if their incomes are below a threshold defined by their state–generally either 150% of the federal poverty line or 60% of the state median income. But qualifying doesn’t mean getting because LIHEAP has never been adequately funded.

For Fiscal Year 2009, Congress appropriated a total of $5.1 million for LIHEAP–slightly more than $4.9 billion for basic grants and $590.3 million for the contingency fund. This was nearly double the funding for Fiscal Year 2008.

Yet the National Energy Assistance Directors Association reports that only 18.7% of eligible households received assistance. About 4.3 million households had their power shut off for non-payment.

For Fiscal Year 2010, President Obama proposed only $3.2 billion for LIHEAP, plus a trigger for additional funding if energy prices spiked again. Congress instead voted to fund the program at its Fiscal Year 2009 level. Surely a better choice because home heating costs are still much higher than in the recent past and, more importantly, because far more people need help.

NEADA projects a 20% increase in the number of households that will apply for assistance this fiscal year. Nothing like this number can be served with the level-funded block grants. States will need swift infusions from the contingency fund.

But they won’t be enough. NEADA estimates that the block grant appropriation could provide 7.8 million households with grants–nearly 1.8 million fewer than the projected number of applicants. If grants average $523, as NEADA expects, the contingency fund could cover only about 1.2 million.

A New York Times editorial recommends a supplemental appropriation when Congress returns. As it says, $2.5 million would cover the applicants who will otherwise be left in the cold.

That would be chump change in a budget that’s well over $3.5 trillion. But it could be a tough sell anyway. The White House and the Congress will be focused on job creation. And we’re hearing alarms about the deficit–from Democrats as well as Republicans.

I just wish our leaders could hear, as I do, the sirens screaming down the street to the low-income housing complex a couple of blocks away. Every winter, they’re a sad reminder of how we won’t put our bucks behind our best intentions.


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.


National Homeless Persons’ Memorial Day in Washington, DC

December 18, 2009

It’s almost December 21. The first day of winter. The longest night of the year. And for 19 years, National Homeless Persons’ Memorial Day.

As in the past, local and state-level organizations across the country will sponsor events to commemorate members of their communities who died during the year because of our collective failure to end homeless.

Here in the District, the two nationwide sponsors–the National Coalition on Homelessness and the National Health Care for the Homeless Council–have joined with the Washington Legal Clinic for the Homeless and other partners to organize a candlelight vigil.

This is more than your usual memorial event. Three and a half months into the fiscal year, the D.C. government still hasn’t found the funds–or the political will–to ensure funding for homeless services after March 31.

Nor has it come to grips with the rising tide of family homelessness. As of December 6, there were 275 homeless families on the waiting list for shelter. There would have been more than 400 had an unusually large number not found friends or relatives to double up with for awhile. Still homeless, but off the list of families awaiting help.

Looking beyond the District, the Center on Budget and Policy Priorities reports that communities need more federal funding for the Homelessness Prevention and Rapid Re-Housing Program that was created by the economic recovery act. This because the projected need was based on an expectation that the unemployment rate would peak, long about now, at 9.2%.

Yet the DC Council is poised to give away an estimated $700,000 a year in property tax revenues to a large corporation that plans to move downtown. Congress has punted jobs legislation–a potential vehicle for the HPRP funding and surely a way to prevent homelessness–into the new year.

The vigil is a way to demonstrate our concern–and our support for more enlightened priorities. You can join just by showing up at 6:00 p.m. near the bell outside the front of Union Station.


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.


National Housing Trust Fund Needs Funds

November 19, 2009

In 2008, the Congress established a National Housing Trust Fund as part of a large bill intended to address the emerging housing crisis.

The Fund was to provide grants to states, which they were to use to increase and preserve the supply of rental housing for extremely low and very low income households* and to help them become homeowners.

Ninety percent of the funds had to be used for rental housing, and at least 75% had to benefit extremely low income households. The initial goal was to fund construction and/or preservation of 1.5 million affordable rental units. The National Low Income Housing Coalition estimates the shortage at about 2.8 million units. So the Trust Fund could make quite a dent.

However, the Trust Fund was to be financed principally by a percentage of the value of new business generated by Fannie Mae and Freddie Mac. Their contributions were indefinitely suspended when they fell into financial distress. So we’ve got a partial solution to the affordable housing crisis on paper only.

President Obama’s proposed Fiscal Year 2010 budget for the Department of Housing and Urban Development included $1 billion for the Trust Fund. Now two bills have been introduced that would give the Fund working capital in different ways.

Both would use funds in the Troubled Asset Relief Program (TARP)–the program that’s been buying up mortgage-backed securities and other “troubled assets” to stabilize financial institutions.

The Main Street TARP Act (H.R. 3766), introduced by Congressman Barney Frank (D-MA), would simply transfer $1 billion from the TARP account to the Trust Fund. It would limit what families have to pay for rent on units funded with Trust Fund money to no more than 30% of their adjusted income. This would ensure that the units remain affordable for the long term.

The Preserving Homes and Community Act (S. 1731), introduced by Senator Jack Reed (D-RI), would transfer $1 billion of the revenues produced by the government’s sale of warrants, i.e., rights to purchase stock in the financial institutions it bailed out. NLICH says that sales of warrants have already brought in $2.9 million. So the funds to transfer should be available.

Neither of these bills would give the Trust Fund the long-term, assured revenue stream it will need to achieve the 1.5 million unit goal. But both could jump-start construction and renovation at a critical time.

The House bill current has twelve cosponsors. The Senate bill has seven. Both will need more to get them on the action agenda. NLICH has e-mails we can customized to help build support.

* Extremely low income households are those with incomes at or below 30% of the applicable area median income. The upper income limit for very low income households if 50% of the AMI. AMIs vary widely, both from state to state and within some states.


Next Round In the DC Homeless Services Crisis

October 13, 2009

This Wednesday at noon, the DC Council Committee on Human Services will hold a roundtable hearing on the District’s winter plan. Or at least that’s the formal topic for the hearing. The dialogue will undoubtedly be broader because, at this point, what’s at stake is the longer-term future of homeless services in D.C.

Since the hearing was scheduled:

  • Homeless service providers have been told that their contracts will be reduced by an average of 30%. Five shelter providers have warned that their clients are at immediate risk. One has said her organization will have to close a housing program for families.
  • Interested parties have locked horns on the size of the homeless services budget cut. We’ve now learned that it’s apparently somewhat over $12 million. Most of this cut represents funds in the federal block grant for Temporary Assistance for Needy Families. These were formerly used to supplement the local homeless services appropriation but have been diverted to other programs.
  • Clarence Carter, head of the DC Human Services Department, has issued a statement committing only to funding for the shelter capacity and other services identified in the winter plan, capped at the Fiscal Year 2009 level. No assurance that any funds will be available for the rest of the year.
  • Some Councilmembers, including Tommy Wells, Chairman of the Human Services Committee, have expressed dismay at this turn of events.

So the hearing promises to be lively and potentially consequential.

A coalition of homeless service providers, advocates and homeless people has scheduled a press conference on the steps of the John A. Wilson building, 1350 Pennsylvania Avenue, NW, at 11:00 a.m. This will be a great opportunity to learn more about what’s happening and likely to happen if the Council or administration higher-ups don’t step in to restore the homeless services budget.

You can influence the outcome of this crisis by calling or e-mailing Mayor Fenty, the City Administrator and members of the Human Services Committee. Contact information for committee members is in the Council directory.

Also attend the press conference and/or hearing if you can. A big turnout will show Councilmembers that their constituents care about the safety and well-being of their homeless neighbors.


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