A potential spike in evictions could be one of the most pressing issues impacting access to justice this year. So could changes to lawyer regulations and a backlash against criminal justice reforms. (iStock.com/designer491)
This year could see setbacks for access to justice, with a potential spike in evictions, a backlash against recent criminal justice reforms and a U.S. Supreme Court that seems intent on thwarting efforts to further equality.
But experiments with nonlawyers providing legal assistance, increased right-to-counsel programs and continued momentum behind a fairer criminal justice system offer some hope for a narrowed justice gap in 2023, experts say.
"One thing the pandemic did was it moved evictions and domestic violence and unemployment from the back pages of the local news to the front pages of the national news," Legal Services Corp. President Ron Flagg told Law360.
"So I think we've made some progress in recognizing that there is a justice gap," Flagg said. "I think the jury's out as to what progress we'll make in 2023."
A Rise in Evictions and Right to Counsel
Evictions could be set to increase dramatically in 2023, some experts say.
Federal, state and local eviction moratoriums as well as various emergency rental assistance programs helped evictions actually fall during the first years of the pandemic. But most of those eviction bans have been lifted, and federal and state rental assistance money began running out this summer.
Virginia's Rent Relief Program, which has "served as a crucial lifeline to households," exhausted its funding in October, Washington and Lee University School of Law professor Carla Laroche said.
"Instead of figuring out how to make promising legal support, policies, laws and programs more just and permanent, policymakers let them lapse," Laroche said.
As a result, evictions are above their historical averages in half of the more than 1,000 counties in which Legal Services Corp. tracks them, Flagg said. And 33% of low-income households experienced a civil legal problem related to housing in the past year, according to the group's 2022 report on the justice gap.
In New York City, for instance, there were 96 eviction filings in the week of Jan. 17-24, 2021, according to Princeton University's Eviction Lab. There were 1,418 filings that same week in 2022. That total had risen to 2,742 by July 17-24.
"We expect that problem to get worse in the coming months as federal rental assistance money runs out and households are unable to keep pace with rising rents and inflation," Flagg said.
One bright spot in the housing landscape, however, is the number of cities implementing right-to-counsel laws for eviction cases, according to Jennifer Prusak, who directs Vanderbilt Law School's Housing Law Clinic.
Most tenants facing eviction can't afford legal representation, and those without attorneys are far more likely to lose their cases. But there are now at least 15 right-to-counsel programs that provide attorneys to low-income people facing eviction in cities around the country, Prusak said.
The success of these programs, along with funding the federal government has set aside for them, means more cities are likely to implement a right to counsel in eviction cases, Prusak said.
"I do think that there's sort of a trend right now toward enacting more of these programs," she said. "And I'm very much looking forward to seeing how it all plays out in the coming year and in years to come."
Rethinking Legal Industry Regulation
Possible changes to the regulation of the legal profession will also continue being weighed in 2023, potentially helping to narrow the justice gap.
Utah and Arizona in particular have been experimenting with permitting nonlawyers to represent people in certain cases, such as evictions and other areas where the justice gap is pronounced, Flagg said.
"That's an exciting development," he said. "It's one that has gained steam in 2022 and I expect to continue in 2023."
For now a "staggering" 92% of Americans don't get enough or any legal help with their civil legal problems, Flagg said.
So state supreme courts and others governing the legal profession are likely to look for ways to innovate and make changes, because "obviously the status quo isn't working," he said.
It's not just those who regulate lawyers who want change; so do entrepreneurs. One legal tech company in New York is suing to undo that state's prohibition on nonlawyers giving legal advice.
Cities like New York, San Francisco and Philadelphia have also enacted right-to-counsel measures, and experts say other jurisdictions will likely explore them as well.
"Some jurisdictions have shown an incredible willingness to think expansively and creatively about new ways to handle cases, the range of assistance that may be provided, and the types of people who may provide that assistance," said Lauren Sudeall, director of the Center for Access to Justice at Georgia State University College of Law.
Other places have been experimenting with ways to divert cases into alternative channels, "and some of those changes have had staying power," Sudeall said.
So we can expect to see more jurisdictions experimenting with changes to lawyer regulations intended to increase access to the legal system.
"Where the justice gap is 92% of people needing help not able to get it, anybody who's trying to defend the status quo has to step up to the plate and say how can we address that," Flagg said.
The Continued Fight Over Criminal Justice Reforms
This year could also see attempts to roll back recent criminal justice reforms, according to Jason D. Williamson, executive director of the Center on Race, Inequality, and the Law at New York University School of Law.
Some real gains have been made on bail and parole reform in the last few years, but the momentum behind those changes may be fading, Williamson said.
That's partly because politicians, particularly Republicans, have used claims that those reforms led to rising crime to great effect during the recent midterm elections, he said.
"It feels like in some places, including in New York City, we're going backwards," Williamson said.
Those fears aren't unfounded.
New York is, in fact, potentially rolling back its bail and other changes, according to New York American Civil Liberties Union policy counsel Jared Trujillo.
Recalls of progressive prosecutors who backed criminal justice reforms recently succeeded in San Francisco and were attempted in Los Angeles. And the Pennsylvania House recently impeached Philadelphia's district attorney for implementing reforms.
There is a long history in the U.S. of making progress on criminal and other social and racial justice reforms and then rolling some of those changes back, said Nicole D. Porter, senior director of advocacy at the Sentencing Project.
"It's not going to be something unique to '23," Porter said.
Efforts to roll back civil rights victories have been part of every civil rights win in American history, so attempts to undo New York's criminal justice reforms are "not surprising," Trujillo said.
But Porter said those efforts may be blunted by increased activism in favor of reform.
Mass incarceration was on the rise in the 1990s, and many prisoners are now becoming eligible for parole after serving 25 years of 25-to-life sentences, she said.
Those former inmates are returning to their communities and sharing their experiences, Porter said. There are also entire generations of people who saw their parents imprisoned or their families harmed by mass incarceration.
"Some of those people are going to become activists, they're going to join advocacy organizations, they may even run for office," she said.
Tarra Simmons, formerly incarcerated and now a state representative in Washington state, helped champion an effort to restore rights to former inmates, for example. And Georgia Sen. Raphael Warnock's brother was recently released from federal prison, something that Porter said "clearly influences" the senator's positions on the criminal legal system.
So while there will likely be regressive bills and policies introduced in some states, Porter insists there will also continue to be efforts to close prisons and reduce excessive sentences.
"It's definitely not going to be easy to scale back without opposition," Porter said.
Blocking Efforts to Promote Equality
The Supreme Court will issue rulings in several controversial cases in 2023, including ones involving race in college admissions, voting rights, free speech and LGBTQ discrimination, and the adoption of Native American children.
Despite the apparent breadth of the issues at stake in Moore v. Harper, Students for Fair Admissions v. Harvard, 303 Creative LLC v. Elenis and others, all these cases are "remarkable" in that they share a common theme, according to the ACLU's national legal director, David Cole.
In each one, the high court is weighing an argument that the Constitution bars other branches of the government and institutions from seeking to further equality, Cole said.
In two cases involving the consideration of race in college admissions, for instance, the petitioners are asking the court to rule that universities' efforts to improve diversity and equality by considering race are unconstitutional. They argue that those efforts actually harm Asian American students, and liken previous rulings allowing colleges to consider race to the ruling in Plessy v. Ferguson, which blessed racial segregation.
In a case involving a web designer refusing to create websites for same-sex weddings, the designer is arguing that the First Amendment bars states from requiring certain businesses to serve all customers equally, Cole said. The designer argues that the websites she designs constitute art, not business, and so requiring her to create them for same-sex couples violates her free speech rights.
Cases over gerrymandering give the justices the chance to rule that the Constitution bars state courts from overturning attempts to deny equal representation to all voters, Cole said. And the justices could rule that the equal protection clause means Congress can't enact laws like the Indian Child Welfare Act to keep Native American families and tribes intact.
"In all of these cases, it's not just that the argument is that the Constitution doesn't further equality," Cole said. "The argument is the Constitution precludes the efforts of other branches of government to further equality."
Potential rulings in cases like these "threaten to remove or limit access to rights and justice," said Laroche, who called them "particularly worrisome" for those who care about civil rights and social justice.
"How far is the court going to go in reading the Constitution to obstruct efforts to further equality in this country?" Cole said. "That, I think, is the principal question this term."
--Editing by Brian Baresch.
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