When I was thinking about what I’d write, I thought I’d write something classy and inspirational as befits the Christmas season. Then, the more I thought about it I realized that classy and inspirational is not my style. Readers of my blog and those who know me know I’m right about that.
Initially I thought I’d contrast the Spirit of Christmas with the malaise of our political lives. It was my hope that this seasonal spirit of family and community would spread into the New Year and thwart the evils in our body politic. But then I thought that such an attempt was a fool’s errand. I can’t remember when the general feeling of good will towards others survived long after the New Year’s hangover dissipated.
Besides, there’ll be plenty of time for commencing the battle between the forces of light and darkness over the soul of America. The existential battle for our individual and collective souls.
Then I thought I could write about my varied interests. I could write about books I like, but I read almost exclusively nonfiction legal and political books. Boring.
I could write about my beloved Boston Red Sox. I don’t know what I could add by way of insight that couldn’t easily be gleaned by them finishing last in the AL East three of the past four years. And I wouldn’t give my Yankee friends and relatives the satisfaction. It may be Christmas but I’m not Santa Claus.
Movies are usually safe, especially schmaltzy holiday movies. Several cable stations started showing Christmas movies on October 1. For anyone who’s interested, my favorite holiday movies are, in no order of preference: Die Hard, Die Hard II, Lethal Weapon, Scrooged, Love Actually, and It’s A Wonderful Life. For the record, I completely loved Oppenheimer, all three and a half hours of it, and I thoroughly enjoyed – yes – Barbie.
But then I realized that I had to be true to myself and the mission of this blog. This was brought home to me when friends of this blog who also happen to be dear personal friends of mine, sent me by email an article from the Albany Times Union. That it was mailed on the day I underwent eye surgery, it took a bit of time before I could get to it.
Once I finally got to it, I realized that it was right in my wheelhouse. Dovetailed to my previous post about our true dual system of Justice, the article focused on approaches to meet those challenges presented by this dual system in the Empire State.
By now you’re wondering where the Christmas Carol is? Read on…
Let’s start with the number of poor people in the United States. In an October 4, 2023, report in Time magazine, the 2022 poverty rate was calculated at 12.4% of all Americans, up from 7.4% in 2021. Child poverty rate also was calculated at 12.4% in 2022, up from 5.2% in 2021. A good part of this increase was due to the reduction in or elimination of the pandemic era programs. For instance, the lapse of the Child Tax Credit was devastating to low-income families.
That said, these percentages may make it look like poverty is not a big problem. After all, this must mean the 83.6% of Americans are doing okay!
Joy to the World!
But let’s put this in real numbers. Assuming a population of approximately 330 million Americans, then the real number of people in poverty calculates to 41 million persons. If that number seems more impactful, it’s all in the presentation; percentages seem manageable while whole numbers can seem daunting.
A brief sidebar about these kinds of government reports. The author and commentator David Sirota in The Uprising, reminds us that the employment/unemployment, inflation, and even poverty numbers presented in percentages are designed to heighten the political prospects of incumbents or destroy those prospects by opponents.
In other words, these aren’t real measures. For instance, let’s briefly address the absurd calculations that determine the number of persons living in poverty. The 2022 Federal Poverty Level was $13,590 for individuals and $23, 030 for a family of three. This is less a poverty level than a life-threatening scarcity of resources.
If you think I’m exaggerating, I invite you to change places with those living in poverty for one year and tell us how easy they have it. Or alter your lives so that you live on $1,132.50 per month (as an individual), or $1919.17 (as a family of three).
Sure, you’ll qualify for some of those sweet social programs like Section 8 housing (if there’s availability) because you definitely won’t be able to swing rent in the private housing market. Let’s say you’re a family of three. According to Housing Works RI, the monthly rent for a two-bedroom apartment is $1996 per month. In order to avoid being financially burdened, the renter would have to earn $80,000 per year.
If our hypothetical family has a monthly income of $1919.00 per month but whose rent is $1996.00 per month, this family starts from a deficit of -$77.00 before even considering the frills and extras that so many of us take for granted: food, clothing, utilities, transportation. Sure, there are less costly rentals but be honest, would you and your family live in one if you could avoid it?
Forget about Christmas, it’s been canceled for this family.
A more accurate measure is the “standard of need” to calculate the dollars required to achieve a minimum standard of living. These are real numbers applied to local conditions. For example, there is an average rental cost that can be calculated and applied to a family’s standard of need. The same can measure can be applied to food costs, transportation costs, clothing, etc.
This would be a far more accurate calculation of those who fall below this standard of need than the artificial irrelevant process devised in the 1950s.
When we think about poverty we think of its more tangible aspects. We know about housing, food, health care, clothing, schools, transportation, and childcare if needed. What we don’t see are legal problems. Low-income folks have many of the same legal problems as the rest of us. A fundamental difference is that the stakes are higher for the poor.
Which brings us back to New York and the Albany Times Union article.
In 2023, Rowan D. Wilson became the Chief Judge of the New York Court of Appeals, the state’s highest court. In November, the Permanent Commission on Access To Justice issued its 2022 Annual Report. As reported to Chief Judge Wilson, the report did not paint a rosy picture of how the poor are represented in the state’s courts.
For example, in the one-year period between March 2022 and March 2023, five percent of all low-income parties were represented by counsel in New York courts. Given that there were 500,000 indigent parties during this time period, only 25,000 parties received legal representation. This is the result of the primary legal services programs needing to “triage” the most acute issues and clients, leaving the rest to fend for themselves.
Now understand, that doesn’t mean that the legal issues of the remaining 475,000 are unimportant. To the people involved, often vulnerable and traditionally underserved, these issues are not just important, they are often vital to the person’s or family’s wellbeing and security.
This is law by lottery. And it’s not just in New York State but it’s the same, to varying degrees, everywhere. Even in my little bailiwick, Rhode Island.
In keeping with with the Dickensian framework, let’s title this next bit A Tale of Two States.
To start with, New York, with a population of 20 million, had 500,000 indigent parties subject to legal action over a one-year period. Rhode Island, with a population of slightly more than 1 million, had just under 37,000 indigent parties subject to legal action.
In 2010, New York established a Permanent Commission on Access To Justice to devise ways and to organize resources to meet the needs of low-income persons with their legal needs. From the beginning, the state has allocated $100,000,000 each year to meet these needs.
In 2013, Rhode Island was given a small grant from the American Bar Association to be used in the development of an Access to Justice Commission. I have a report indicating that $18,000 was granted and used to contract a consultant (identity unknown) to develop a plan to develop a Commission. To date there has been no public report of any plan or any public accounting of the money.
In New York, the new Chief Judge Wilson is actively engaged in dedicating additional resources in support of the Commission’s work. As of this writing, he has committed an additional $100,000,000 each year for five years to expand legal services to the poor. When added to the already extant $100,000,000, by the end of the fifth year the state will have increased its financial commitment to $600,000,000 a year. But this falls short of the Commission’s calculation that $1 billion would be required to meet the needs of the underserved in New York. And even at that $1 billion each year may not be sufficient.
Rhode Island has made no financial commitment to meet the legal needs of the poor. In 2014, my agency unsuccessfully attempted to convince the state legislature to raise court filing fees by $5-$10 per filing. This effort is chronicled in my book Access To Justice On The Outskirts Of Hope, which I urge you to read. It was during this time that I determined that Chief Justice Paul Suttell actively opposed our legislation and remains indifferent to the plight of unrepresented low-income parties appearing in the courts he oversees.
But my pulse quickened about a year ago when I learned that Rhode Island had opened an Access to Justice Office. My hopes were dashed when I learned that this wasn’t a precursor to an Access To Justice Commission, but instead an office to assist the courts in dealing with parties with physical impairments and ensuring that non-English speakers have translators available.
Don’t get me wrong, these are serious and necessary efforts. But there’s a cynical part of me who sees the name of this Office as a cruel reminder that we were once optimistic about having an actual functioning Access To Justice Commission in Rhode Island.
A Christmas Carol
In his story, Dickens drew a picture of the power relationship between the hard-working Bob Cratchit and his boss Ebenezer Scrooge. Scrooge is a miserly miserable man who works Cratchit to the bone, paying him only a subsistence wage to support his family.
Then on Christmas Eve Scrooge is visited by four ghosts, his deceased business partner and the ghosts of past, present, and future. By Christmas morning Scrooge is a changed man, seeking to atone for his treatment of others, especially the Cratchit family. At the end of the story, Dickens tells us the Scrooge kept Christmas in his heart everyday going forward.
This story lies on the border between fiction and fairy tale. Written in 1843 London, incidentally the same year and location that Marx wrote the Communist Manifesto, it tried to convey the plight of London’s underclass. In the end, we’re supposed to feel a sense of relief at Scrooge’s personal redemption, ignoring that Scrooge is just one man and the social inequality born of economic and political inequality was endemic throughout 1840s London.
Nearly 200 years later, in our rich country, we have too many of our neighbors and friends on the weak side of our society’s power curve. As our economic inequality begets political, social and legal inequalities, it may take a novel to increase our awareness and understanding of the very real plight of others. But it is up to us, individually and collectively, to effect that change.
The poor and near poor have very real legal issues that touch on the vital elements of their, and their family’s, lives. Courts exist to resolve disputes between parties only after a fair presentation of facts as they comport with the law. In civil courts, these disputes touch on the ability of people to reside in safe housing, maintain their family unit, and the preservation of their economic security.
Courts gain legitimacy when due process is followed in deciding these issues. The concept of due process is not aspirational, it is a constitutional mandate. Justice can only be assured if issues can be addressed by two parties of somewhat equal abilities. The way to ensure this outcome is to require both parties to be represented by competent counsel.
Due process in criminal matters has been acknowledged since 1963. However, the Court has not determined that a similar due process right exists in civil matters. Until that right is acknowledged, it is up to us to ensure that everyone is treated equally before the law. Properly funded Access To Justice Commissions is an excellent way to achieve that outcome.
So, as we move into 2024 when serious issues impacting each of us will be decided, don’t be distracted by the glittering contests playing out elsewhere. Each of us can reach out and stand for those who can’t stand for themselves and speak truth to power for those who are rarely, if ever, heard.
And then maybe someone will write of our time that we kept Christmas in our hearts each day for the rest of our lives.
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