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One of the biggest stories in recent years is how the Left and Right have joined forces to reform our broken criminal justice system. This unlikely partnership, led by organizations such as Koch Industries and the Center for American Progress, has sparked efforts to address issues ranging from sentencing disparities to mandatory minimums. However, while this union is promising, some skepticism remains. As highlighted by Molly Ball in The Atlantic, the Koch Brothers, often on the receiving end of litigation, have a financial interest in relaxing criminal penalties.

Nevertheless, Charles Koch has made substantial contributions to the National Association of Criminal Defense Lawyers, helping to provide legal representation for poor defendants. Whether viewed as PR or genuine support, there’s no denying the dire state of indigent defense and legal aid in the U.S. Public defenders are overworked and underfunded, and even private attorneys who step in for public defense are often paid too little. The criteria for receiving representation are also too strict, excluding many simply because they receive unemployment or disability benefits.

While criminal justice reform is making headlines, our civil justice system often receives far less attention. The courts are prohibitively expensive for most people, not just criminal defendants. There is an imbalance of power between plaintiffs and well-funded corporations, who can afford lengthy and costly litigation.

The Need for Civil Legal Aid

So why is there such a sharp distinction between civil and criminal legal services? Longtime public defender James Neuhard points out that few other countries make this distinction. While the U.S. Constitution guarantees protections for criminal defendants, the Supreme Court has also recognized the need for legal assistance in civil cases.

In the landmark case of Gideon v. Wainwright, the Supreme Court ruled that any person facing criminal charges who cannot afford a lawyer is entitled to one. As the Court stated:

“In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him… Lawyers in criminal courts are necessities, not luxuries.”

Neuhard notes that this reasoning could easily be applied to civil cases as well. In Brotherhood of R.R. Trainmen v. Virginia, the Court recognized that civil litigants cannot be expected to navigate the legal system on their own, especially when facing well-represented opponents. Yet, despite these acknowledgments, the Court has never guaranteed the right to counsel in civil cases.

The Cost of Inaction

Maybe it shouldn’t. Guaranteeing a lawyer for everyone in civil cases might encourage frivolous lawsuits, but there are many instances where guaranteed counsel would ensure justice for those who need it most. As John Pollack of the National Coalition for the Civil Right to Counsel writes:

“Most wealthy people would hire an attorney to avoid losing their home, their children, or even their lives in cases involving health or safety, such as domestic violence. But the typical indigent civil litigant has no chance of a fair trial when facing off alone against a landlord’s attorney, a bank, or a state agency.”

While the cost of providing civil legal aid would undoubtedly be high, Pollack argues that the cost of not providing it might be even greater. Evicted tenants and domestic violence survivors often end up in shelters or hospitals, funded by the government. Parents who are ordered to pay more child support than they can afford sometimes end up in jail.

A Path Forward

Cornell Law professor Kevin M. Clermont suggests that while guaranteed counsel for civil litigants would help, it’s likely an issue for the legislature rather than the courts to address. If our legal system is to be fair and accessible to all, we need reforms that make justice affordable, whether it’s in the criminal or civil courts.Now, if only we could find two unlikely parties to team up and get to work.