No Money, No Lawyer, No Justice
In 1954, Kevin Green got his Social Security card and started picking cotton for $3 per hundred pounds in a tiny agricultural town in California’s Central Valley. He was five years old. One of seven children, he used the money to buy school supplies. He kept working—and paying into the Social Security system—through high school, then beyond: for Douglas Aircraft, at a telephone company warehouse, as a messenger at the UCLA hospital. In 1969, he was drafted, and spent four years flying in and out of Vietnam as a cargo plane loadmaster, balancing the weight of tanks and helicopters going in and cadavers coming out. After his discharge, he worked truck routes around the Bay Area for nearly 25 years, delivering beer, then paper products. One afternoon in 1997, while loading a hand truck for his last stop of the day, he stepped onto an uneven curb and fell, injuring his neck and back and shattering his ankle and foot.
In the years afterward, Green underwent repeated surgeries, watched his marriage fall apart amid the stresses of disability and unemployment, and endured regular epidural drips and shots to mitigate the nerve damage that kept him up at night and made his feet burn. But he made a new life. He found an apartment in Oakland; he joined a Bible study group. He was able to live, very modestly, on the $1,269 he received each month from Social Security Disability Insurance—money he stretched to cover his rent, utilities, car insurance, food, and medicine.
One Friday in August 2017, Green, who is now a soft-spoken 70-year-old and not used to talking about himself, received a letter from the Social Security Administration stating that the next month’s check would be withheld because of an alleged overpayment. The notice—only the second communication he’d received from SSA in a decade—didn’t explain the overpayment or when it was made. On Monday, Green rushed to the local SSA office to ask what it all meant. Clerks sent him to another branch, where he was told he’d been overpaid by $12,000 some 10 or 12 years before. If he wanted copies of the records proving it, he’d have to pay for them to be mailed; if he didn’t want his check withheld, he’d have to apply for a waiver. “Other than that,” he said, “they wouldn’t tell me anything.”
Green, who asked that his real name not be used for fear of retaliation, was bewildered. Ever since he’d qualified for disability insurance—the type of Social Security support dependent on your prior work contributions—he’d been vigilant about following the rules. In his community, people knew all too well that when a mistake happens, it’s your fault, even when it’s not. After his accident, he’d paid a lawyer to ensure that his disability application was done correctly. When his son graduated from high school, he immediately told SSA so it would stop sending the additional payments that minor children of parents on disability may qualify for. He kept every piece of mail the agency sent, and forwarded letters from workers’ comp to the SSA so it could offset his payments accordingly. Even when his workers’ comp subsidy was later reduced, entitling him to higher disability payments, he didn’t ask for the money, figuring he’d rather SSA owe him than the other way around. “I swear, this is the main thing I kept straight,” he told me. “I knew what could happen, and it happened anyway.”
For four months, Green tried to make sense of the claim on his own, but everything he learned seemed incomplete or contradictory. The alleged overpayment might have concerned workers’ comp, or income his ex-wife made after she and Green separated, or the payments to their son. No one could say for sure. What was certain was how losing the check would affect him. It was easy to imagine the calamitous spiral of events—eviction, bankruptcy, destitution—that could land him among the Bay Area’s 30,000-person homeless population, sleeping in his car.
After Green reluctantly applied for a waiver, pending further investigation, SSA agreed to dock his check by only $200 a month, instead of withholding it all. But the shortfall still left him reliant on a credit card to meet his basic needs. Over the next two years, he amassed thousands of dollars in credit-card debt he stood little chance of repaying. And almost every month, he received more form letters warning him anew that his benefits were about to be cut.
Many days, when he contemplated the catastrophe that seemed constantly on the horizon, he considered suicide. When I visited him in February at his home—a meticulously kept apartment where a photograph of him in his service uniform hung in one corner—he limped into his bedroom and returned with a bottle of pills to show me how he’d do it.
“Look, you’re going to take everything and then you won’t tell me why?” he asked. “You might as well kill me.”
People tend to know about such Social Security problems only if they’ve happened to a family member, said Steven Weiss, an attorney at Bay Area Legal Aid. Weiss has seen SSA cut people off because they didn’t report “assets” like an old, out-of-commission car, or because a family member had once helped them through a crisis—assistance the SSA declared was disqualifying because they had misidentified it as an ongoing source of support. In one case, Weiss represented an elderly immigrant from Afghanistan kicked from the rolls after SSA asked him leading questions about property owned by relatives overseas. When the man admitted his family had once owned a house in Kabul, the agency, without inquiring whether it was still in their possession, assigned a value to it and found him ineligible.
Green’s ordeal is just one example of the scandalously widespread problem of abusive debt collection practices, which average citizens are ill-equipped to handle. Governmental claims about the overpayment of public benefits are overseen by rules so byzantine that few could comprehend them. Very often, such claims are due to administrative error, but beneficiaries are still liable to make up the mistaken shortfalls. Failure to pay the money back can leave people cut off from benefits or pressured into signing an admission of criminal fraud, even when the claim is incorrect or ineligible for collection.
Usually people on the other end of overpayment or overissuance claims don’t have attorneys to help, said Jessica Bartholow, a policy advocate at the Western Center on Law & Poverty. “That’s really appalling, because a public benefits fraud case can be enough to kick you out of the country if you’re an immigrant; they could go to jail; they could lose their kids if they go into Child Protective Services.” When people have lawyers, by contrast, “one out of two times” they can prove there was no overpayment at all.
The consumer debt industry, wherein thousands of people are arrested and jailed each year for debts as low as $28, is equally bad. In a 2018 report, A Pound of Flesh, the ACLU described how small claims courts have become an unofficial arm of the debt collection industry, even though creditors’ lawsuits are often riddled with errors—suing for incorrect amounts, pursuing debts already paid or ineligible for collection, even levying lawsuits against the wrong person—errors, in other words, that lawyers would immediately catch. But only about 2 percent of U.S. debt collection cases involve defendants represented by attorneys, leading to a Maryland study’s astonishing finding that debt collectors win 95 percent of their cases, even though 90 percent of the time they lack evidence to prove their claims.
For poor people, access to civil legal representation depends almost entirely on geography and luck.
That gets at the larger problem Kevin Green encountered: In the vast majority of debt cases, people must represent themselves in court or administrative procedures they’re woefully unprepared to navigate, a situation that amounts to a massive violation of due process rights. This is the status quo of a sprawling but mostly invisible crisis that extends far beyond debt. Indeed, no fewer than 71 percent of low-income Americans experience at least one civil legal problem per year, yet 86 percent of them receive either minimal or no legal help to deal with it. That’s because Americans with civil legal needs, unlike those in criminal courts, have no universal right to an attorney.
In 1963, the Supreme Court case Gideon v. Wainwright granted Americans the right to a public defender in criminal cases. The ruling recognized the Sixth Amendment’s guarantee of a right to counsel and the Fourteenth Amendment’s provision that the government can’t deprive someone of life, liberty, or property without due process. But in a country where most people’s legal knowledge begins and ends with the Miranda warning—specifically the provision that if you can’t afford a lawyer, the court will appoint one for you—there’s little understanding of the circumstances in which you don’t qualify for a lawyer, or even what civil legal issues are. Ask what civil courts are for, and people may answer that they’re where divorce or personal injury lawsuits happen. They’re unlikely to guess how high the stakes are, or to know that civil courts determine whether some domestic violence victims secure protection orders; whether disabled people, veterans, and natural disaster victims receive benefits they’re owed; whether people can keep their housing, their income, their children.
The confusion remains even when people directly encounter civil legal problems. A 2014 study by the American Bar Foundation noted that, although two-thirds of Americans experience civil justice issues, less than 10 percent of survey participants recognized them as such; more than half saw them simply as bad luck or “part of God’s plan.” But the effects of such disputes can be severe, and frequently snowball. Every year, the Department of Veterans Affairs surveys homeless vets to identify their needs, and consistently finds that many of the top 10 are explicitly legal in nature—foreclosures, outstanding warrants or fines, suspended licenses—and the remainder could likely benefit from legal help as well. Some civil issues involve matters of basic freedom. When debtors are incarcerated for consumer obligations; when senior citizens are placed under someone else’s legal authority in guardianships; or, in some states, when pregnant women are committed because they’re believed to be using drugs or alcohol—all these situations are dealt with in civil court. Meanwhile, government programs designed to help the most vulnerable are often inaccessible without legal support.
Those who realize they need help may turn to groups under the umbrella of the Legal Services Corporation (LSC). These organizations receive federal funding to provide free representation to people making less than 125 percent of the federal poverty line—a category that, in normal times, encompasses a fifth of the country. (LSC grantees represent around a quarter of all U.S. legal services organizations.) But the need outmatches the available assistance by many orders of magnitude. In 2017, LSC released its “Justice Gap Report,” showing it was able to sufficiently address the civil legal needs of less than 40 percent of the roughly one million people who come to the agency every year. The rest are either given minimal advice or turned away.
“If you go to any metropolitan courthouse or state courthouse,” said former LSC president Jim Sandman, “what you’re going to see is more than 90 percent of tenants facing eviction without a lawyer,” even though more than 90 percent of landlords have them. The vast majority of people in child support or custody cases appear without counsel. “You’ll see victims of domestic violence trying to get protection orders on their own.”
Some legal fields, like public benefits overpayment claims, effectively exist only within the poorly funded sphere of legal aid, since the financial incentives for private attorneys to take on such cases are virtually nonexistent. And even among legal aid agencies, the personnel is limited. In Santa Clara County, where more than 300,000 people receive benefits, the local legal aid office has just one attorney focusing full-time on overpayments.
The proportion of civil cases wherein one party is unrepresented, or pro se, has grown massively since the 1970s. There are many reasons for the change. In part, there’s simply more litigation. As cities gentrified, eviction rates increased. Debt collection lawsuits increased dramatically—in New Jersey, for instance, court judgments against consumers ballooned from 500 in 1996 to 140,000 in 2008. The 2008 recession set off a domino chain of misfortune in many people’s lives—a preview of the economic devastation the coronavirus pandemic will bring. Meanwhile, the incentives for lawyers to undertake general practice in smaller towns have fallen as law school costs have soared. Graduates with staggering debt are increasingly forced into business law in urban centers, leaving far more “legal deserts”—county after rural county with no lawyers at all.
The average civil case can easily involve nearly 200 separate tasks, many of which require legal expertise. “People who don’t have counsel are forced to navigate a legal system that was created largely by lawyers, for lawyers, on the assumption that everybody has a lawyer,” Sandman noted. A 2010 American Bar Association survey found that an overwhelming majority of judges said pro se litigants don’t present necessary evidence, examine witnesses properly, or know when to object. Courts are also designed to be friendlier to the people who come often, providing courtesies to creditors’ or landlords’ attorneys they don’t extend to the other side.
The network of interlacing injustices is so vast that it becomes difficult to comprehend as a whole. Martha Bergmark, the executive director of Voices for Civil Justice and a past president of LSC, said the problem reminded her of the story of the blind men and the elephant. People may be aware that consumer debt collection is predaceous and corrupt; that low-income people face terrible odds in family or housing court; that anyone hoping to receive government benefits depends on the whim, and competence, of bureaucrats seeking to cut costs. But they don’t connect these effects back to a root cause: Without representation and adequate information, poor people don’t have access to the rights and benefits they’re due.
What’s more, civil courts constitute a burden borne almost entirely by the most marginalized members of society. They’re poor people’s courts, black and brown people’s courts, women’s courts. The higher your income, the less likely you are to deal with them at all. “The DMV is the only place where middle-class people have to interact with a similar kind of bureaucracy,” Margaret Middleton, the former executive director of the Connecticut Veterans Legal Center, pointed out. “We all talk about how much we hate it. Now imagine if you’re dependent on that for practically everything.”
Legal aid as a field began with an expansive aim: “using the law to make the lives of poor people better,” according to retired appellate court Justice Earl Johnson, who was the second director of the Office of Economic Opportunity’s Legal Services Program. The OEO was founded in 1964 to serve as the driving force behind the War on Poverty. Before then, what civil legal help existed for the poor was a matter of private charity. By 1968, the OEO had funded 260 legal services programs in 49 states and begun a broad campaign to transform the law.
Johnson set aside roughly 20 percent of the program’s budget for grantees to take on class actions, appeals, and other major legal endeavors. He created “backup centers” at law schools to specialize in different legal areas—housing at Berkeley, health at UCLA, consumer law at Boston College. He presided over unprecedented victories on behalf of poor people who, for the first time, had the means to sue both private businesses and government services. They won a host of landmark verdicts. In 1968, King v. Smith expanded due process for people facing the termination of food stamps and public housing. A year later, Shapiro v. Thompson forbade the government from arbitrarily denying benefits to welfare recipients. From 1967 to ’74, legal aid groups argued 110 Supreme Court cases and won nearly 70 of them.
And then they fell victim to their own success. When one OEO grantee, California Rural Legal Assistance, won farmworker lawsuits against corporate growers and fended off the state’s attempts to cut welfare and Medicaid, the organization drew the ire of then-Governor Ronald Reagan, who sought repeatedly to block its funding and prevent it from suing government entities. In Washington, President Nixon appointed a series of conservatives hostile to the premise of legal aid to run OEO: Donald Rumsfeld, Dick Cheney, and Howard Phillips, a far-right ideologue who’d go on to found the breakaway Constitution Party. In 1973, as acting director of OEO, Phillips declared, “I think legal services is rotten and it will be destroyed.”
Phillips’s enmity helped persuade OEO’s supporters of the need for a stand-alone entity less vulnerable to political manipulation. In 1974, after much resistance from conservative senators, a bill established the Legal Services Corporation as a private nonprofit that would manage and distribute congressional funds to local legal aid programs. The senators opposing LSC threatened to abandon Nixon during impeachment unless he vetoed it. Instead, after more partisan wrangling, in one of Nixon’s last acts before resignation, he signed. But the bill included a bevy of new restrictions on what legal aid groups could do—they could not, for instance, take cases on abortion, desegregation, or the draft.
For a brief moment in 1981, LSC met its goal of “minimum access”—the benchmark of funding legal aid groups in every area of the country and providing two lawyers for every 10,000 eligible people. But when Reagan became president, he called on Congress to demolish LSC, and, failing that, to slash its budget. Hundreds of offices were shuttered. Though Congress fended off Newt Gingrich’s 1994 proposal to eliminate LSC, further restrictions accrued: Legal aid groups could no longer represent “specified groups of aliens,” prisoners, or some public housing tenants, and they couldn’t take on class actions or do policy lobbying or welfare advocacy. Congress cut LSC’s state support centers and national training program—anything, as Johnson said, “that would encourage or support major litigation.”
Since Reagan entered office, support for LSC has steadily decreased. Adjusted for inflation, the nonprofit receives 53 percent less funding than it did then. And every year Donald Trump has been in office, the president, whose administration declared in 2018 that the War on Poverty was “largely over and a success,” has proposed cutting the program entirely.
When the issue of a universal right to counsel has come before the Supreme Court, as it did in 1981 and 2011, it’s been rejected. What poor people with civil legal issues face, therefore, is a patchwork of varying state laws in an already balkanized justice system, leaving access to representation dependent entirely on geography and luck.
In 2016, an indigent father in Ohio, who was facing the loss of his parental rights if his child was adopted, wrote a motion requesting an attorney, citing his constitutional due process rights. The request was denied, and the father lost. When he appealed, the appeals court upheld the ruling, arguing that, although the father had “generally referenced the constitutional arguments that might be made, he did not argue them and explain how they apply to his case.” In other words, his request for a lawyer was denied because he hadn’t written it the way a lawyer would.
His request for a lawyer was denied because he hadn’t written it the way a lawyer would.
In other cases, judges may be more sympathetic, but are limited by the constraints of their roles. In New York in 2015, Eastern District Judge Jack Weinstein presided over a racial discrimination lawsuit brought by a black man suing his former employers at a Così restaurant franchise. Così’s attorneys argued that the man waited too long to sue, and the case should be dismissed. It was only through “a series of leading questions,” the judge wrote, that he discovered it wasn’t too late at all. But Weinstein then felt obligated to withdraw from the case, since interceding on the plaintiff’s behalf could make him appear partial. In his sharply worded recusal, Weinstein noted the larger problem: “In many cases, pro se justice is an oxymoron.”
Philadelphia’s Family Court sees such an overwhelming majority of litigants representing themselves that leafleteers stand outside its doors advertising on-the-spot attorneys. (“If you go in without me,” a representative flyer read, “the consequences are yours!”) Judge Christopher Mallios recalled one woman seeking a civil protection order against the man who had raped her while she was incapacitated after a surgery. The woman had filed a police report and gotten a forensic examination—both strong pieces of evidence any lawyer would bring to court—but she hadn’t known to include them. Although Mallios granted the order, in similar instances he said his hands would be tied. “I can’t give legal advice to one side about how to get those reports,” he explained. “I have to stay in my lane.”
Scenes like these have bolstered a movement calling for the universal right to counsel in civil cases that involve basic needs such as housing, health or social services, domestic violence, child custody, guardianship, and consumer debt. The American Bar Association endorsed the call in 2006, and advocates have found a receptive audience in judges, such as Weinstein and Mallios, who have been distressed by the flood of unrepresented litigants.
The notion of a right to counsel is a larger demand than just improving funding for LSC groups, which, even with more resources, would still be forced to pick and choose cases. The lack of such a right also leaves LSC with no leverage: It exists at the whim of Congress, which could eliminate the consortium if it chose. Establishing a right to counsel, clarified John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, would create “not just a promise but also an obligation.”
It would also require a systemic shift. If all civil parties in basic-needs cases had representation, advocates argue, workloads might initially spike, but they’d eventually decrease, as judges spent less time instructing confused pro se litigants, bogus cases were identified more quickly, and fewer cases returned to court repeatedly after they’d been handled right the first time. Ultimately, fewer bad actors might abuse the system: fewer landlords seeking illegal evictions, fewer debt collectors bringing claims without evidence. The money it would take to fund such a system, they say—likely a quadrupling of the current LSC budget—would be offset by savings in other public spending.
In earlier days, the movement went by a pithier name: “Civil Gideon.” But that name invited confusion, suggesting that advocates wanted free attorneys for every conceivable civil case. And Gideon already hardly works for criminal cases; public defenders are so overburdened and underfunded that many are forced to provide representation in name alone, midwifing a stream of automatic guilty pleas. Such conditions have prompted critics, like Judge Stephanos Bibas, a circuit court Trump appointee, to argue that Gideon has amounted to “Potemkin lawyering”: broad but shallow, providing attorneys to many but quality representation to few.
Advocates, too, sometimes worry about shallow reforms. In 2017, New York City stunned the legal world by passing its Universal Access to Legal Services law, which provided for the eventual representation of every eviction defendant making less than 200 percent of the poverty line. While the law set a new bar for the movement, some tenants’ rights attorneys feared replicating the failures of public defense, and noted that the sheer scale of systemic challenges facing poor tenants, and poor people more broadly, couldn’t be solved by legal representation alone.
As a result of concerns such as these, many in the right-to-counsel movement now suggest that a continuum of legal solutions will be necessary to close the justice gap. Advocates have collaborated on innovations in various states and municipalities, including legal self-help centers; free online programs for criminal record expungements and bankruptcies; videoconferencing to connect urban lawyers with rural clients; and unsexy bureaucratic fixes such as the creation of a standard court form for a given state. There are also potential policy solutions, including the wholly reasonable requirement to screen consumer debt lawsuits to ensure that creditors actually own the debt they claim, and have evidence to prove it, before allowing them to file.
In 2010, the Obama administration’s Department of Justice devised a remarkably successful answer to the intractable problem of insufficient civil legal representation, via the Office for Access to Justice (ATJ), which was tasked with finding innovative fixes for the justice gap. Karen A. Lash, who would become the office’s deputy director, was initially unsure how best to realize the program’s potential. “We didn’t have the typical tools that the feds have,” she explained, “like grant-making authority or enforcement authority.” But Lash helped formulate a means of funding legal aid that didn’t depend on persuading politicians to prioritize poor people’s legal rights. By emphasizing the ability of legal services to increase efficiency, the ATJ convinced a whole host of government programs to incorporate legal services into their design. The Department of Labor, for instance, could make people more employable simply by funding legal aid lawyers to help them expunge their criminal records or reinstate their driver’s licenses.
In 2012, the approach was formalized in a new program, the Legal Aid Interagency Roundtable (LAIR). It was elevated to the status of White House initiative in 2015, and under Lash’s direction partnered with 22 federal agencies, including the Department of Veterans Affairs. In 2011 and 2012, the VA encouraged its centers to establish medical-legal partnerships, and even house legal aid groups, since veterans often become homeless because of unmet civil legal needs.
Jasper Farmer, a 73-year-old Vietnam veteran, was court-martialed in 1968 for going AWOL amid what today would immediately be recognized as intense PTSD—the result of witnessing the deaths of fellow Marines in an outpost just shy of the DMZ. Farmer was given an “other than honorable” discharge, which disqualified him for VA benefits. When his health deteriorated dramatically around 2016—with a series of diagnoses, including bone and prostate cancer, multiple myeloma, and hearing loss, all of which related directly to his service and wartime exposure to Agent Orange—he was forced to stop working. His family, suddenly reliant on his wife’s salary and his paltry Social Security check, began visiting food banks, fell behind on their rent, and were evicted, a misfortune that forced the four to split up: Farmer and his wife to one sister’s house, their two daughters to another.
In most circumstances, the family’s fracture would have been the start of a long downward slide. But Farmer chanced into a referral to the Errera Community Care Center in West Haven, Connecticut, the first VA center in the nation to embed a legal aid group—Veteran’s Justice Outreach—within its walls. Most of the group’s work involved disability compensation cases for vets whose condition was caused or exacerbated by their service, including vets who have been previously denied benefits because of their discharge status. It used what Margaret Middleton called “forensic psychiatry,” crafting appeals to the VA to upgrade clients’ statuses so that they could qualify for assistance. In early 2017, VJO appealed Farmer’s case, marshaling medical records and statements from Farmer, his family and doctors, as well as veterans’ leaders, all attesting that Farmer’s previously unrecognized PTSD entitled him to a reclassified status.
And just like that, he won full health insurance and full disability benefits. His monthly income increased from $800 to $3,000; he even qualified for VA contributions for his daughters’ eventual college expenses. The decision was life-changing. By March 2019, 31 medical-legal partnerships had cropped up in VA facilities across the country, as well as 140 free legal clinics offered in other VA locations. It was hard to imagine a more substantive outcome for the goals of Access to Justice.
But when the Trump administration came into power, it largely abandoned the program. In 2017, after the transition, the office held several final meetings, advocates said, including a roundtable with secular and faith-based aid groups and meetings on crime victims’ and veterans’ concerns—the few matters in which the administration expressed interest. Ultimately, ATJ abandoned even those initiatives. By 2018, both the acting director of the Access to Justice office, Maha Jweied, and the Trump appointee above it, Rachel Brand, resigned, and advocates heard there was just one person left at LAIR. The office had been quietly defunded, its staff gone, its offices dark.
Learning about the success of the Access to Justice office after its demise feels like catching a glimpse of an alternate reality. Today, we’re contending with an administration that didn’t merely defund that office, or try to gut legal aid, but has targeted social safety net protections at nearly every level. During other hostile administrations or Congresses, the legal aid community managed, barely, to hang on. After the Trump administration took office and began to actively dismantle protections (and as members of Trump’s family enriched themselves abusing civil courts), advocates looked to more decentralized solutions, such as efforts at the state and local level and in the private sector.
In 2017, Karen A. Lash began working with American University to repurpose her strategy at LAIR for state and local governments, which can use federal block grants—in addition to information-sharing and policymaking collaboration—in the same way federal agencies have deployed program budgets. In California, 10 pilot projects fostered collaborations between legal aid groups and superior courts. The right-to-counsel movement has also scored some key early victories, like New York City’s laws providing counsel for eviction defendants and immigrants facing deportation, and these breakthroughs in turn have inspired bills in more than a dozen cities and states. And over the last three years, the Conference of Chief Justices—an organization of each state’s top judges—and the Conference of State Court Administrators have supported pilot projects in seven states seeking to cover all the basic civil legal needs of a particular region.
Bergmark finds it hopeful that state Supreme Court justices are focused on the issue. “This is not an unsolvable problem, but a matter of mobilizing the political will to do it, almost jurisdiction by jurisdiction,” she said. John Pollock agreed: If victory comes, it won’t be in a sweeping federal verdict, but rather incrementally—housing in this state, custody in another, he said. On the website of the National Coalition for a Civil Right to Counsel, a map represents new or proposed state legislation across the United States—more than 125 bills in 2019 alone, in 43 different states.
In early 2018, after trying for months to handle the SSA’s overpayment claim on his own, Kevin Green was referred to Bay Area Legal Aid, where he became a client of Steven Weiss. Although Green had previously been talked into accepting a $200 deduction from each month’s check, with Weiss’s help, he composed a budget to demonstrate that withholding any more than $40 left him unable to meet his basic needs, violating SSA policy that overpayment recovery shouldn’t contravene the purpose of Social Security or principles of “equity and good conscience.” SSA officials agreed to the reduced withholding, but still continued to send Green contradictory notices. Sometimes they reverted to their threats to withhold $200, or even the full $1,269 check. In one confounding letter, they told him they’d take $40 and the total amount. Green would call Weiss out of breath, saying, “‘These people are trying to kill me.’ That’s what it felt like to him,” Weiss recalled. “They’re just taking his money and he doesn’t know why.”
Weiss and his colleagues didn’t know why either—until this February, two and a half years after SSA sent Green his first letter. Bay Area Legal Aid had previously requested an administrative hearing, and SSA was finally compelled to send Green’s records, which revealed that, while SSA had offset Green’s direct payments when he informed it of his workers’ comp, the agency had incorrectly offset the payments sent to his son. Years later, in 2016, SSA tried to contact the son, but sent the notice to an old address, and the letter was returned undelivered. Without trying to make contact again, the agency had apparently decided to hold Green liable without informing him—violating, at the least, its duty for timely notification.
The pandemic will exacerbate almost every difficulty facing both legal aid as an institution and the clients it represents.
In late February, Weiss’s colleague Raegan Joern accompanied Green to administrative court, and laid out his case: Green had done everything he was supposed to, had never received any explanation of the overpayment, and, in any case, couldn’t repay it. Joern requested her client be granted a full waiver, and that the funds SSA had taken be returned.
The judge appeared sympathetic, and Green and Joern left feeling hopeful. They had to wait, however, to receive a decision, as written opinions from administrative courts can sometimes take close to a year to arrive. While they were waiting, the Covid-19 pandemic shut much of the country down. Amid the crisis, SSA announced a temporary suspension on new efforts to recover overpayments, although its existing collection efforts would continue. Green’s case stalled. Weiss feared that once the SSA began new collections again, his client would be joined in his plight by a deluge of others similarly cheated, similarly confused.
The pandemic and the economic catastrophe it unleashed will exacerbate almost every difficulty facing both legal aid as an institution and the clients it represents. In the last two months, legal aid groups have rushed to address a series of urgent new problems, as well as older issues now gaining more public attention. They have worked to release adults and youth in high-risk detention facilities, to defend vulnerable seniors in health crises who are being exploited through improper guardianships, to relieve poor debtors whose scant government stimulus checks may be seized the moment they’re deposited. The stimulus package appropriated an additional $50 million in funding for LSC, but it comes as slashed federal interest rates demolished another source of legal aid funding—the interest collected on lawyers’ trust accounts, which in some states represents 75 percent of legal aid budgets—and in any case is only a fraction of what LSC will need to address the coming demand. Legal aid groups that were stretched before Covid-19, Pollock noted, will be even more strapped now. In early May, in response to the crisis, a bipartisan coalition in the House introduced a “Civil Gideon” resolution that guarantees legal representation in all civil proceedings involving “basic human needs.”
For years, legal aid has served as a stopgap in a social safety net system that, as Bergmark put it, is spectacularly “skewed towards disqualifying people.” But “what’s coming down the tracks,” she told me, “is an out-of-control train”: millions of people about to emerge from the pandemic newly jobless and poor; facing eviction, hungry creditors, and soon-to-be-denied benefits; about to become acquainted with the meager portion of justice America reserves for people like them.
Kathryn Joyce is a contributing editor at The New Republic and author of The Child Catchers: Rescue, Trafficking, and the New Gospel of Adoption.
Co-published with The New Republic.