Imagine that you are facing a contested divorce case and might lose custody of your children. Or that your house is about to go into foreclosure or you are facing eviction. The other side has an attorney. You do not because you cannot afford one.
In Alaska, as in every other state, attorneys are generally not provided in civil matters such as these to indigent litigants. Attorneys are provided for even minor criminal offenses. Yet, many people would rather spend a couple weeks in jail than lose their children or their house.
This year is the 50th Anniversary of the Gideon v. Wainright decision that established the right to counsel in criminal cases. This case arose when a Florida man was forced to act as his own attorney in a breaking and entering trial because the trial court refused to appoint an attorney for him. In a unanimous decision, the United States Supreme Court held that assistance of legal counsel is a fundamental right essential to a fair trial. The decision subsequently led to the development of the public defender system.
While Gideon addressed a pressing need in achieving fairness in criminal cases, there exists an equally pressing need to ensure fairness in civil cases. In only one third of divorce and custody cases are both parties represented by an attorney. In another third only one party is represented, and in the last third neither side is represented. Many of these cases involve critical safety issues to Alaskan children and families, such as domestic violence and substance abuse.
The statistics are even more dire when it comes to housing. Over half of eviction cases in Alaska involve situations where only one party, almost invariably the landlord, is represented by an attorney.And while foreclosure rates in Alaska are among the lowest in the nation, over 10% of subprime loans in this state are delinquent.
For a few individuals with limited income, legal assistance is available through non-profit organizations such as Alaska Legal Services or the Alaska Network for Domestic Violence and Sexual Assault. But these organizations are not able to serve even close to the numbers that seek their assistance.
Approximately one half of low-income households will be faced with the need for civil legal assistance each year -that amounts to around 85,000 Alaskans. Alaska Legal Services, which is Alaska's largest legal non-profit with offices around the state, can assist only fraction of those in need - about 6,300 per year. Their limited resources mean low-income families with critical legal needs are turned away with no place to go.
The Alaska Network on Domestic Violence and Sexual Assault, which is a statewide coalition of 18 domestic violence and sexual assault programs, provides civil legal assistance to individuals served at shelter programs across the state. These are clients facing severe safety needs. They generally have to turn away close to 50% of the applicants who apply for services through their program.
Indeed, the need for legal representation in domestic violence cases is especially vital. Close to sixty percent of women in Alaska will experience intimate partner violence, sexual violence, or both sometime during their life. Almost twelve percent have experienced such violence in the past year. Now imagine having to face your abuser in court without legal representation. Many women choose not to do so and forego the protections the law makes available.
As a society, we signify our values by how we define individual rights and allocate our resources. By not providing legal counsel in civil cases to those who cannot afford it, we reinforce the idea that their struggles are theirs alone and that the individuals themselves are of diminished value to the larger society. Surely we in Alaska can do better. A strong sense of justice means pushing for access to legal representation for all, so that no one faces domestic violence, or custody, or eviction, or foreclosure, or any of a myriad of other civil legal issues without the ability to have their day in court be a meaningful one.
Ryan Fortson is an assistant professor at the UAA Justice Center, where he teaches courses in legal studies.