How a civil right to counsel can help dismantle concentrated poverty in America's inner cities.

• Author: Ortiz, Pamela Cardullo

INTRODUCTION I. THE CHALLENGE OF CONCENTRATED POVERTY A. Why Place Matters B. Theories and Solutions C. Addressing Concentrated Poverty as a Legal Problem II. CIVIL RIGHT TO COUNSEL III. HOW A CIVIL RIGHT TO COUNSEL ADDRESSES CONCENTRATED POVERTY A. Housing B. Employment C. How Important Is It to Have Counsel? D. The Impact on the Law Itself from Engaging Lawyers in Poor Neighborhoods CONCLUSION INTRODUCTION

In his book, So Rich, So Poor, Peter Edelman calls for the nation to address concentrated poverty as part of a larger strategy to end poverty in America. (1) Most efforts to address concentrated poverty have included well-intentioned strategic thinking by policy specialists. These include the creation of Community Development Corporations beginning in the 1960s with Robert Kennedy's Bedford/Stuyvesant project, the enterprise zones of the 1980s, and empowerment zones in the 1990s. (2) These have been somewhat successful, but limited in their reach. And, too often, such efforts faded as funding was diverted elsewhere to pursue other ideas or when the needs of the urban poor appeared less urgent. (3)

Poor people cannot wait for powerful elites to decide it is time to address their problems and support their neighborhoods. A civil right to counsel may be one tool that poor people themselves can use to crack open generations of imprisonment in low-income, underserved, and under-achieving neighborhoods. By establishing a right to counsel in case types affecting basic human needs--shelter, sustenance, safety, health, and child custody--the poor may be able to demand their due, stabilize their families, improve their well-being, strengthen their neighborhoods, and promote economic diversity and socioeconomic mobility in our cities.

The creation of a civil right to counsel will also affect changes in the justice system itself as legal service providers will be called upon to expand services to meet a greater percentage of the legal needs of the poor. Increased funding and demand will require that providers establish offices within urban neighborhoods and will increase the interaction between public interest lawyers and those they serve. If they are wise and adopt a client-driven approach, providers will have an opportunity to learn from their clients. This will also permit legal service providers to identify potential clients in case types that are outside the scope of a civil right to counsel, perhaps in those areas where they can have an even greater significance on law reform efforts to address poverty. This Article will address the challenge of concentrated poverty and suggest that the creation of a civil right to counsel can be a powerful opportunity to enhance low-income inner-city neighborhoods, to empower those who live there, and to create new opportunities, new choices, and socio-economic mobility in our cities. The first Part will describe the phenomenon of concentrated poverty, proposed theories and solutions, and legal issues inherent in its causes. The second Part will describe what it means to provide a "civil right to counsel," and review the case types likely to be included in an expanded right. It will explore several strategies that have been proposed for improving neighborhood conditions and promoting mobility, and discuss the potential legal strategies that might be employed by poor residents in advancing those strategies. The final Part will review how having a lawyer makes a difference, i.e., why these strategies will be less effective if residents do not have access to counsel, the role lawyers may be able to play in inner-city neighborhoods, and, finally, the impact on the law itself that may result from engaging lawyers in poor neighborhoods.

1. THE CHALLENGE OF CONCENTRATED POVERTY

   Life is difficult for the poor; it is even more difficult for those poor whose support network is also impoverished. (4) City residents in neighborhoods with high concentrations of persons living in poverty are less likely to alter their circumstances. (5) While it is not exclusively an urban problem, most of the nation's concentrated poverty and "socially distressed" tracts are found in the 100 largest central cities. (6) This Article will suggest that providing a right to a lawyer in key case types that affect the poor is an important part of any comprehensive strategy for addressing poverty. Access to justice has a role to play in addressing the limitations of place and the legacy of race. Providing a legal enforcement mechanism--a right to a lawyer--can make any single antipoverty strategy more robust.

   The changes in the U.S. economy over the last several decades have seen concomitant decreases and increases in concentrated poverty, mirroring the health of the overall economy. The decennial Census, and the American Community Survey (ACS) provide data on the percentage of individuals living within a specific census tract who report incomes below the federal poverty level. (7) Most recent research relies on Census data through 2000, and then on the ACS for a five-year estimate of the period between 2005 and 2010. (8) The U.S. Census Bureau categorizes tracts based on the rate of families living in poverty within that tract. In Category I tracts, fewer than 12.4% of families have incomes below the federal rate. Category II includes tracts with a poverty rate of 12.4% to 19.99%. Category III includes tracts with a poverty rate of 20% to 39.9%, and Category IV includes tracts with poverty rates of 40% or more. Studies vary on whether they use 20%, 30%, or 40% as the hallmark of "concentrated poverty." Regardless of the definition used, however, the trends are the same.

   The percentage of individuals living in neighborhoods (9) of concentrated poverty increased during the 1970s and 1980s, but decreased significantly during the robust economy of the 1990s. During the 2000s, U.S. metropolitan areas saw a resurgence in concentrated poverty, eviscerating the gains that had been made during the 1990s. The percentage of those living in extreme poverty (Category IV) in metropolitan areas increased from 13% to 17% during the 1980s, but by 2000 had decreased again to 12%. (10) By 2010, however, the percentage of individuals living in concentrated poverty had again increased. From 2005 to 2009, while the percent of metropolitan neighborhoods with poverty rates of 40% or more increased by only half a percentage point (0.5%), researchers estimate that the concentrated poverty rate rose another 3.5% in 2010 alone, to reach 15.1% percent. (11) Studies that use the five-year estimate from the ACS may actually understate the effect of the Great Recession on the rate of concentrated poverty, since that study relies on averages from years that precede 2008. (12)

   During the period between 2000 and 2010, when concentrated poverty increased, the overall poverty rate was also increasing--from 11.3% to 15.3%. (13) Metropolitan areas that experienced a sharper rise in overall poverty likewise experienced an increase in poverty concentration. (14) The face of poverty changed during this period as well. There was a general shift in concentrated poverty to the Midwest and the South during the 2000s, altering the average demographic profile of extreme poverty neighborhoods. Residents of extreme poverty neighborhoods were more likely to be white, native-born, high school or college graduates, homeowners, and not receiving public assistance than they had been a decade earlier. (15) Nevertheless, African-Americans still represented the largest percentage of those living in neighborhoods of concentrated poverty, where they made up 44.6% of the population. (16)

   1. Why Place Matters

      The "spatial concentration of poor people acts to magnify poverty and exacerbate its effects." (17) Individuals living in Category III and IV tracts (with poverty rates above 20%), score extremely high on indicators of social and economic distress. (18) It should not be surprising that living in concentrated poverty limits one's educational opportunities, exposes one to increased crime, and is likely to affect one's health. (19) It also makes it more difficult to accumulate wealth. As real estate markets decline, the few assets that poor individuals own decrease in value. Such neighborhoods are less attractive to investors. This means there are fewer retail establishments and services. The lack of competition drives up prices in these inner-city neighborhoods, further burdening the poor who have limited transportation options at their disposal. Increased social services caseloads, high rates of emergency room admissions, and law enforcement costs further burden local governments, driving up taxes. (20) The poor do not just pay twice; they pay more, and they pay more often.

      Before the poor can "move or improve," they need meaningful choices about where to live, where to work, what schools their children attend, and to whom they go for health care. Enforcement of the law is a critical component of any public policy that creates new choices to ensure that panoply of choices remains available to the poor. A city that invests in job training and job creation, for example, may open up opportunities for the unemployed or underemployed, but that investment will fall flat unless that city also invests in enforcement by providing access to the legal system that enforces employment rights. Take, for example, low-wage workers who are at times misclassified as independent contractors. By failing to treat their workers as employees under the law, employers can avoid minimum wage laws, overtime pay, unemployment, and worker's compensation payments. A worker will not realize that he has been deprived of benefits to which he is entitled under the law until he is disabled or loses his job, and is denied disability or unemployment compensation. (21) Enforcement actions are key components of any anti-poverty solution. And that enforcement, although undertaken in many cases...