The Accused Poor.

• Author: Headworth, Spencer

CRIMINAL AND CIVIL LEGAL AID ARE IN SEEMINGLY PERPETUAL STATES of crisis. Since the Supreme Court incorporated the right to counsel to states in Gideon v. Wainwright (1963), judges, scholars, attorneys, journalists, and the American Bar Association have bemoaned the lack of financial and ideological commitment to criminal legal aid (American Bar Association 2004, Bach 2010, Backus & Marcus 2006, Houppert 2013, Rakoff 2014). The same could be said about federally funded civil legal aid, which does not involve the same kind of constitutional entitlement but emerged out of President Lyndon B. Johnson's War on Poverty in 1964 and evolved into the Legal Services Corporation (LSC) in 1974. Since the 1970s, scholars and practitioners have documented shortcomings in access to justice for civil defendants (Cramton 1981, Legal Services Corporation 2009, Rhode 2004, Rothwell 1965, Tate 1979).

Legal aid continues to be imperiled. Public defenders' lawsuits claim that persistent underfunding prevents adequate representation of criminal defendants (Costello 2013, Drinan 2009, Primus 2006). On the civil side, US President Donald Trump's proposed 2018 budget eliminates all federal funding for the LSC (Ford 2017). The LSC predominates civil legal aid and has already undergone cuts.

Civil and criminal legal aid are tied to the same socioeconomically marginalized communities; accordingly, a juxtaposition of the rights and legal status of poor people in both settings is illustrative. Based on the findings of two separate studies--one of public defenders and one of welfare fraud investigators--this article provides a composite analysis of the legal situation of the accused poor in criminal, civil, and administrative proceedings.

Adversarial legalism dominates the US approach to criminal justice and welfare administration (Kagan 2001). US criminal law leans heavily toward the assignment of individual responsibility and blame and the use of harsh punishments. The US criminal legal system is also highly adversarial in the procedural sense. It is organized around an argumentative process in which contesting parties (the state and the accused) vie over competing narratives of fact and culpability (Kagan 2001, chaps. 4, 5). Similarly, the patchwork US social safety net operates on the basis of a labyrinthine network of rules, regulations, rights, and procedures (Kagan 2001, chap. 8). Disputes--whether involving individuals making claims against the state or the state making claims against individuals--are handled through legalistic adjudication processes. In these processes, as in their criminal justice analogues, opposing parties compete to gain official validation of their positions and determine legal outcomes.

In criminal, civil, and administrative legal contexts, retaining the services of an attorney--especially a private attorney--is an important predictor of success. The empirical data on outcomes for criminal defendants vis-a-vis type of attorney are decidedly mixed. Studies have found that there are no significant differences between types of counsel (Hardey et al. 2010); that public defenders, compared to appointed counsel, reduce their clients' overall expected time served in prison by 24 percent (Anderson & Heaton 2012); that public defenders' clients are more often detained and convicted and have their cases dismissed less often (Williams 2013); and that privately retained attorneys are approximately 2.7 times more likely to obtain acquittals than public defenders (Cornell 2014). It is thus generally better to have a private attorney. Moreover, as in criminal proceedings, lawyers help secure favorable legal outcomes in civil and administrative contexts (Sandefur 2010). (1)

Legal services, however, are generally not free. People who cannot afford to hire legal representation often find themselves at a distinct disadvantage. In recognition of representation's importance, the Sixth Amendment's protections for criminal defendants include the right to assistance of counsel. As established in the landmark 1963 Supreme Court decision Gideon v. Wainwright, this protection requires states to provide legal assistance to defendants who lack the resources to fund their own criminal defense.

Whereas the Sixth Amendment and Gideon guarantee some basic level of criminal legal aid, the civil system lacks such guarantees. People who cannot afford to hire lawyers access civil representation via three main sources: federally funded legal service providers, otherwise-funded legal clinics, and pro bono lawyers (Sandefur 2007). Overall, more than 80 percent of low-income Americans' legal needs are not met (Weinstein 2016).

Access to justice advocates have invested substantial effort lobbying for "civil Gideon," arguing for representation rights not only in criminal contexts but also in civil and administrative ones. Courts largely disagree, citing Lassiter v. Department of Social Services of Durham County, North Carolina (1981). In Lassiter, the Supreme Court held that no guarantee of counsel exists in parental rights proceedings. This decision represented a significant break from the Court's prior favor toward procedural protections for poor people in administrative proceedings. The holding substantially reconfigured the type of calculus used to determine the applicability of due process protections. Based on Mathews v. Eldridge (1976), the Court employs an "interest balancing test" to assess the appropriate application of due process protections in different settings. The basic principle of this test is to strike a compromise between the interests of various stakeholders in adversarial proceedings. Traditionally, the test involved consideration of three sets of interests: the personal interests of the defendant or litigant; respect for appropriate procedural protections; and the interest of the government in fiscal and administrative efficiency in the disposition of cases (Shaughnessy 1982).

Lassiter reshaped due process. The Court held that the right to counsel "has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation" (at 25, emphasis added). Although most states supplied counsel in parental hearings, the Court denied any constitutional requirement. This decision underlines the jurisprudential interpretation of personal liberty as a unique interest demanding special legal protection. Conversely, it downgrades the due process protections required when most other interests are at stake, such as public benefits (e.g., nutritional assistance, Medicaid, Social Security) or parental rights. As one contemporary observer noted," Lassiter, for all practical purposes, stands for the proposition that a drunken driver's night in the cooler is a greater deprivation of liberty than a parent's permanent loss of rights in a child" (Besharov 1981, 221).

Threats to personal liberty in the form of incarceration continue to dominate due process doctrine. Losing access to the nutritional assistance one uses to feed her or his family, for instance, is a potential penalty that courts--as well as welfare fraud investigators--tend to see as dramatically lower stakes than potential confinement. The protections afforded to Supplemental Nutrition Assistance Program (SNAP) clients in administrative fraud hearings are accordingly less extensive than those provided in principle to criminal defendants.

This essay juxtaposes the legal environments poor people encounter in criminal adjudication and in welfare fraud proceedings. On paper, criminal defendants have protections that are absent in administrative settings; in practice, however, the substantive value of these greater protections is questionable. For several reasons examined in more detail below, adverse consequences are largely a foregone conclusion for the accused poor in both criminal and administrative proceedings.

The analysis proceeds in three parts, roughly corresponding to major stages in the process by which these legal accusations are created and adjudicated. In each of these sections, we discuss the criminal and administrative contexts in turn. First, we address the intake stage, with a particular focus on the key role discretion plays in determining who is charged and with what type of offense. Next, we examine the procedures involved in providing access to fair hearings as well as discrepancies between principles and practice, especially for the indigent. We then analyze outcomes for the accused poor, particularly noting the near-ubiquity of determinations of culpability. In conclusion, we summarize the key implications of our findings both for economically disadvantaged Americans and for the polity at large.

Data and Methods

This article's conclusions are based on two separate studies of key figures in the creation and processing of legal accusations against poor Americans. In the area of administrative accusations, Headworth's study focuses on dedicated welfare fraud control units. These state-level units work to counteract client fraud in federally funded means-tested public assistance programs. Generally speaking, their staff of civilian investigators constitute a specialized unit operating within the state's public assistance agency. Their responsibilities include Temporary Assistance to Needy Families (TANF) and SNAP. Given SNAP's comparatively large size and the greater federal oversight of this program, SNAP clients constitute the majority of these units' workloads.

For his study, Headworth first conducted a national overview of fraud units' basic characteristics and a review of relevant federal and state law and policy. He then selected five states for detailed examination, anonymized as Eastcoast, Midatlantic, Northeast, Southeast, and Southwest. These case studies included semi-structured interviews with welfare fraud investigators as well as fraud unit supervisors, managers, and agency administrators, covering a range of...