Joe Kennedy on the need for a ‘Civil Gideon’ and the ‘disappointing’ response he received on Twitter
"People played — and preyed — on that asymmetry of information."
Before he was a national figure, Rep. Joe Kennedy III witnessed the inequities of the civil justice system play out on a near-daily basis.
Unlike in the criminal justice system, individuals facing legal action in civil court aren’t guaranteed a lawyer. And as a law student volunteering as a legal aid in Boston’s housing court, Kennedy saw what that meant: Those who had money, power, and knowledge of the system had an immediate — and often-times decisive — advantage over usually lower-income people who did not. Without a lawyer, they were literally playing on their opponents’ turf. Thursdays in Boston housing court were dubbed “Eviction Day.”
“People played — and preyed — on that asymmetry of information,” Kennedy told Boston.com in an interview.
The situation is hardly unique to Boston — or housing court.
Tens of millions of Americans cannot afford a lawyer. And while they’re constitutionally guaranteed counsel in criminal cases, a 2017 report found that low-income individuals in the United States received either insufficient or no legal help in 86 percent of their civil cases — often involving life-altering events, like evictions, domestic violence, bankruptcy, and wage garnishment. From state to state, studies have shown that individuals without a lawyer are disproportionately likely to lose.
Some federal, state, and local programs have taken steps to expand access to legal aid for low-income individuals, but Kennedy expects that situation will only get more dire in the near future due to the economic effects of the coronavirus pandemic. After all, he saw it firsthand working in Boston’s housing court during the last financial crisis.
“If it’s you up against an institutional or corporate adversary — whether it’s a landlord, whether it’s a partner with money, whatever else — far too often you just get rolled,” Kennedy said. “And that reality is going to compound infinitely, given what’s going to happen as we move our way through this crisis.”
It was with that “enormous urgency” in mind that the Massachusetts congressman proposed a “Civil Gideon” last week.
Invoking the Supreme Court decision in Gideon v. Wainwright requiring states to provide representation to criminal defendants who cannot afford a lawyer, Kennedy’s resolution simply calls for expanding that right to individuals in civil cases involving basic human needs, such as health, safety, family, shelter, and sustenance.
The resolution says that the federal government would help fund what Kennedy calls the “most progressive expansion of civil justice” in the history of Congress. However, the Newton Democrats suggests it would even ultimately save the government money, given how expanded legal aid services in states from Florida to Massachusetts have been associated with reduced costs in other areas, like emergency shelter and health care.
A long-standing (if recently forgotten) goal of the American left, the Civil Gideon also attracts fairly broad ideological support. Kennedy’s resolution has 14 co-sponsors, from moderate Republicans like Reps. Susan Brooks and Fred Upton to progressive Democrats like Reps. Pramila Jayapal, Ilhan Omar, and Rashida Tlaib.
And yet, when Kennedy — whose 2020 primary challenge against Sen. Ed Markey has drawn the ire of some progressives — highlighted the new proposal on Twitter over the weekend, he faced surprising blowback, particularly for a tweet asserting that no one should “be forced to fight off medical bankruptcy in the midst of a global health pandemic without a lawyer by their side.”
Left-leaning users on Twitter pounced, with thousands of replies deriding the notion that one should ever face medical bankruptcy in the first place. The congressman earned the ignominious honor of getting ratioed.
What should have come back from vetting. pic.twitter.com/JOV4vDVUcp
— Tim Tagaris (@ttagaris) May 9, 2020
Kennedy was quick to point out that he supports Medicare-for-All, the proposed single-payer system championed by Sen. Bernie Sanders that would guarantee universal health care and rule out medical bankruptcies. Expanding legal aid and health care are hardly at odds, he argued. And several liberal voices on Twitter, including the former press secretary of Sanders’s presidential campaign, came to Kennedy’s defense.
Kennedy says he was left “a bit frustrated and disappointed” that his proposal to address an imbalanced power structure received such a negative reaction.
“Let me be clear about this, I’m not advocating for medical debt the same way I’m not advocating there should be domestic violence in this country,” he told Boston.com. “What I am saying is that because we have a system where that happens, the people who are afflicted by it deserve representation.”
Read the full conversation about Kennedy’s Civil Gideon resolution below, lightly edited for clarity.
Boston.com: Why did you think this was the right time, in the middle of a pandemic, to introduce this resolution?
Kennedy: First off, I’ve been working on this for a long time. And as you start to understand the basic context of the need here, this should have been done a long time ago. This civil legal justice system has been past a breaking point and a crisis point for years. And this has been something — for those of us who are focused on this issue and understand the gravity of it — that we’ve been working towards now for years.
I’ve got some experience as a legal aid, a volunteer, and obviously as a prosecutor, and saw that need up front in a real and visceral way. And so when I got to Congress I actually founded an access to justice caucus. The name has changed a couple times along the way. I think it’s now Access to [Civil] Legal Services Caucus, trying to basically advocate for the legal services and support for our legal aid system. We’ve been able to increase funding there by about $130 million for [the Legal Services Corporation] since I’ve arrived in Congress. We’ve gotten some of the broadest bipartisan support LSC has ever had. And the last [coronavirus] emergency package had about $50 million in additional support for LSC. And we’ve gotten the most amount of Republicans signing onto an appropriations letter supporting LSC funding certainly in modern history.
So we’ve been successfully making the case about how dire the circumstances are and how important this is for people to avail themselves of rights and protections under law.
And I think that part is critically important here, because what we’re advocating for is that the law applies equally to everyone. That’s it. And the challenge that we have in the legal system is that for a lot of folks, particularly lower-income individuals that don’t have access to a lawyer, you don’t know what your rights are.
If it’s you up against an institutional or corporate adversary — whether it’s a landlord, whether it’s a partner with money, whatever else — far too often you just get rolled. And that reality is going to compound infinitely, given what’s going to happen as we move our way through this crisis.
Just think about the potential for evictions. Think about the consequences for child custody. Think about what this means for employment, as employers are saying, ‘Hey, we gotta go back to work,’ and employees don’t have confidence that the workplace is safe. All of the ways in which people need to have their rights protected and defended while they are scrambling to try to meet basic needs — that is going to surge. And our justice system needs to make sure that those rights are protected and defended.
Boston.com: Back when you were a legal aid volunteering in Boston’s housing court, how did you personally see the lack of counsel play out on some of these issues?
Kennedy: It’s devastating — like literally devastating.
I was part of [the Harvard Legal Aid Bureau] as a law student. The work that I was doing was focused on eviction cases and it was right as the financial crisis and foreclosure crisis was peaking back in 2008-2009. And so we were working through communities around Boston, but predominantly Dorchester, Roxbury, Mattapan. Most of my clients — not all, but many of them — many were single parents. Many of them didn’t speak English — Spanish was their first language. And they had no experience with the justice system or the experience that they had was not necessarily a positive one.
What would happen with the cases we dealt with were many tenants — many of whom were paying their rent, just like they should — but the landlords couldn’t pay the mortgage.
As you remember back in that moment, they had these teaser-rate mortgages that were very low and then the rates would spike a couple years later. But what landlords were doing was just refinancing because the housing market went up and so you could take out money from the house after the home appreciated and put that back in and refinance and get your mortgage rate down again.
That works until the home stops appreciating — and then all of the sudden you can’t take equity out to refinance the home and all of the sudden your mortgage rate goes from like 2 or 3 percent to 8 or 9 percent. And the landlord cannot make the payment on the house.
And so what would happen in these communities like Dorchester, Roxbury, and Mattapan was the landlord wasn’t making payments on the house; they also were’t making maintenance payments on the home either. And so you walk into these homes — I walked into one and there were live wires hanging from the ceiling. It was in the middle of a remodeling; there were nails everywhere, stripped down to the studs. There were rats, cockroaches, mice. And a multi-generational family living through all of it.
The legal system would say, ‘Hey, when the bank forecloses, they assume all of the liabilities of the home.’ And so you get a representative from that bank or the mortgage company that would walk in and see how terrible the circumstances were, understand that there were legal protections put in place to protect the tenants from those condition, and in some of these cases the violations would be so bad they’d be worth tens of thousands of dollars, because people were living in absolute squalor.
The mortgage company would then just try to evict them based on fear and say, ‘Hey, look, you’re going to lose your house. The owner of the home no longer owns it. We own it now. You have to move out. Here’s 500 bucks, and leave.’
They just scared and harassed people out of their homes, so they got up and left — not knowing that they had rights and if they actually stood by those rights and availed themselves of those rights, they could get additional housing, they could get money for relocation, they could get emergency housing, all of it.
She was getting taken advantage of so brutally. And that happens every day.
I had one case, a single mom that had had this happen to her once in the middle of the school year — pick up her family and move to another apartment. And a couple months after being in that next apartment, it happened again. And she said, ‘I can’t relocate my family in the middle of the school year, again,’ and stayed. She went out for groceries, she came back, and the servicer had changed the locks on the doors. The fire department had to come and break the door down. One of her children had a nervous breakdown at school the next day.
That’s what was going on. And so we would take some of those cases and just try to fight for their rights — the rights that you and I and everyone else in Massachusetts would have, aside from the fact that if you didn’t know that they existed, you don’t. And people played — and preyed — on that asymmetry of information.
I remember being in that courtroom one day, where a tenant who was living in a very difficult circumstance was getting evicted and was up against an institutional landlord who had an attorney whose job was to do all of these cases.
They went to resolve the case, and they came back in, and they started reading the agreement, and the judge looked at the attorney and went, ‘No way,’ and told the woman, who was there by herself alone, to go outside and ordered a volunteer attorney to help her, because she was getting taken advantage of so brutally. And that happens every day. And if it happens here in Boston, it happens everywhere all over the country.
And that’s just on housing cases. I was a domestic violence prosecutor for a little while, doing a lot of other cases but also a lot of DV cases, and you’d have somebody accused of assault in a courtroom.
I would arraign the defendant, and often times — not always — the alleged victim would ask for a restraining order [which is a civil action]. I would have to sit down, because I was a criminal attorney on behalf of the Commonwealth of Massachusetts. But that individual’s defense attorney, if they were privately retained, didn’t. And in order to get that protective order, that victim has to give testimony as to what happened and it’s under cross-examination. And yet she often has no advocate there to help her at all.
Imagine this, where you just get in a fight with your partner, your partner gets arrested after beating you up, you have to go the next day, you’re asking for a protective order, and you get cross-examined with no preparation by your partner’s attorney. And that testimony — all of your answers — are now locked in for any subsequent civil case, any martial proceeding, custody proceeding, and — by the way — a criminal proceeding. Because if anything changes, now all of the sudden they’ve got a testimony that says, ‘Hey, well you said this when you were on the stand one time and now your story has changed.’
And again, this happens thousands of times across our country.
Boston.com: So this resolution envisions basically a parallel public defender system for civil cases around basic human needs, but not all civil cases, right?
Kennedy: We’ve got physical safety, shelter, income, health, and family.
The way we’ve conceptualized it — and as advocates have conceptualized it over the years — is to say there’s going to be some civil proceedings here where, you know, you’ve got a company suing a company — you guys can figure that out.
But where you have these core segments of basic need that often are going to indicate a power imbalance, where somebody has access to resources, knowledge, information, and power, and somebody doesn’t. That asymmetry leads to some of the dramatic disparities in outcomes that are contained in that resolution. You see it just in eviction cases, versus the number of positive outcomes where people can stay in their home if they’re represented.
You see it immediately when you walk into housing court. They’ve stayed all evictions [during the pandemic], but every Thursday is eviction day in Boston housing court. If you just walk in and walk through there with someone that knows what’s going on, it’s a devastating indictment of what it means to be housing insecure in our country.
Boston.com: Given there are already shortages in public defenders for criminal proceedings in many places across the country, how do you make sure that there’s adequate funding to make sure this would work?
Kennedy: Often times these cases are linked. So in that domestic violence case, you provide that alleged victim with an attorney for that protective order and ensuing civil cases, you’re going to see different results take place with the criminal case.
The overlap here between these cases in enormous, so providing a more level playing field in one would actually help adjudicate more fairly the system on the other. To that end, if you don’t have access to an attorney for criminal cases, the consequences of that on the civil side is also devastating, right? You get convicted or plead without understanding the full ramifications — you plead to a non-violent drug offense and all of the sudden your access to public housing might go. If you didn’t know that going in, you’ve got a big problem.
So making sure that people understand how these systems are interrelated I think is critically important.
Second, think of the way people get access to an attorney on the criminal side here in Massachusetts. There’s kind of three main ways of doing it. One is you hire a private attorney. Two is you qualify for public counsel services and that’s income-based and you get somebody from the Committee for Public Counsel Services, a state-paid public defender. And my experience with that in Massachusetts is like they’re all very good. They’re very solid attorneys, without question.
And then the third is what’s called an attorney-for-the-day, and those are people that are private attorneys but go through some training that is not wholly expensive on criminal law and are then qualified to represent criminal defendants through the attorney-for-the-day program, which is through the Committee for Public Counsel Services.
Understanding that we do not have enough public defenders to take on every case for people who qualify, they then would have a private attorney who says, “Look, I have capacity in my own caseload to take on more cases. I’ve qualified to actually take on criminal cases, and I am going to sign defendants that get arrested on a certain day, they’re assigned to me, and I am paid for their representation by the state.”
You can imagine a similar system takes place on the civil side, where we say, OK, there’s actually a fair amount of attorneys out there that have capacity to take on more cases. Not every attorney is overloaded. What if we actually designed a system where you could have for family court an attorney-for-the-day program, where civil attorneys that have received essential training that they need can in fact represent would be assigned families that have gone through an evaluation where there is this income-based and power-based guidelines that would get them qualified for representation?
At the very least, you could go through these five areas of basic need that I have articulated in this resolution.
It might cost some more money, and as I said I’m advocating for much greater allocation of resources for LCS. But as the resolution details, the savings that come with actually availing people of their rights is pretty enormous. The social costs of eviction is enormously expensive compared to what it would mean to actually pay a lawyer to keep somebody in their home.
When we start talking about cost, what we’re talking about is how much are we actually willing to pay to ensure that there’s equal access to justice in a democracy. That is literally a foundational principle of our country, and we don’t have it.
Boston.com: So, you had a series of tweets over the weekend, one in particular mentioning how this would help in cases of medical bankruptcy, that received a bit of backlash from what you might broadly describe as more left-leaning voters on Twitter.
Kennedy: I thought it was a bit disappointing to see. I support Medicare-for-All and I’ve been clear about that and so I think there was a bit of a lack of understanding for some of those folks as to my position on that legislation.
And let me be clear about this, I’m not advocating for medical debt the same way I’m not advocating there should be domestic violence in this country. What I am saying is that because we have a system where that happens, the people who are afflicted by it deserve representation and deserve to be ensured that their rights are heard, and that they are protected.
I can’t imagine — if we were going to look at the gaps in our civil justice system today and say, ‘Where do we need to fill?’ — we would say we need to fill these other areas but we’re going to carve out medical bankruptcy because we don’t believe medical bankruptcy should exist. I don’t believe it should exist, but that doesn’t mean that as long as it exists people shouldn’t get access to a lawyer. Of course they should.
So I’m not so sure that criticism is well framed, well understood, or well placed, given my long history of advocacy for these positions and what it is that a Civil Gideon actually seeks to prevent in terms of the power imbalance in our civil justice and seeks to allow in terms of actual access to equal rights and representation.
Boston.com: Why do you think it got that sort of response?
Kennedy: No idea. And again, [I’m] a bit frustrated and disappointed because that is not — we had a series of examples in there where if you happen to think about it for a second and think about it the other way, I think it would be a glaring loophole to say given the inequities in our system today we’re going to say you shouldn’t be able to access — if you are facing bankruptcy because of lack of access to health care, you don’t get an attorney.
Of course you should. And that does not mean that just because I’m advocating for an attorney in those circumstances that I think medical debt is a good thing. I don’t. And my position on that is very clear.
Boston.com: There does seem to be relatively broad support for the resolution. You have Ilhan Omar; you have a few Republicans on there. How do you see this going forward?
Kennedy: Look, I’m really proud that we actually have the broad array of support that we do have. I’m grateful for our Republican colleagues that were able to sign on to this.
But I also think that it’s reflective of a growing understanding about how inequitable the system is, and if you’ve got our ‘Dear Colleague’ letter the first quote by an advocate we have in there is the chief justice of the state Supreme Court of Texas, Nathan Hecht, who is not exactly a progressive. But he’s been an extraordinary advocate for legal services, because I think if you are in this system you see the disparate outcomes for folks that have access and those who don’t. And you see it every single day.
Susan Brooks is the co-chair of that caucus that I founded; she’s been a tremendous advocate for spreading the word amongst some of her Republican colleagues. But she’s also a former U.S. attorney and criminal defense attorney, so she understands both sides of this and can speak to it from a very personal level. And as we’ve been able to gain support for this I remember The New York Times did a piece on legal services about a year-and-a-half ago and they had a snippet in the story about this family from Oklahoma who was getting foreclosed on and losing their farm, because a clerk in the local town hall or whatever it was put in a typo when they put it the amount of taxes they owed.
And so a foreclosure notice was generated and they were losing their house and they had no idea why. And they were able to get a legal services attorney who went through the paper and found the error and corrected it, and saved their home.
I took that story and went to my Republican colleague and said, ‘Hey, take a look at this story. Legal services is your last line of defense against an overbearing government to protect your individual rights.’ And he signed onto our appropriations letter.
Boston.com: With the coronavirus, Congress is going to be pretty busy over the next few months — and President Donald Trump definitely hasn’t shied away from trying to take advantage of those power imbalances that you talked about when it comes to the civil court system…
Kennedy: That’s a generous way of putting it.
Boston.com: …so what does the outlook look like for this proposal?
There’s enormous urgency to it without question. We will continue to push as hard as I can to build support for this over the coming weeks and months and to back this up with a piece of legislation as well.
Does coronavirus kind of throw a wrench it that? Yeah, of course it does. We’re not in D.C. nearly as much as we normally would be. I can’t sit down and walk members through this the way I would normally want and in a way that you would normally seek to build support for it.
But I will say that having Republicans being able to introduce this — and I’m grateful to Representatives Upton and Brooks for doing it — is a big deal. This is not something that is just a kind of strong desire on my part and a wish of a progressive vision for our future. It acknowledges — and we’ve done a fair amount of work to get folks there — an awful lot of support across a broad political spectrum that acknowledges the underlying need here.
With advocates like Chief Justice Hecht, we’re able to help paint that picture for others that might not understand the way in which this system plays out for people on a daily basis. That happens in conservative parts of the country every single day as well. This is not just something that happens in blue parts of major urban centers.
So if you can make a prediction about when this could move forward, what do you think?
[laughs]
I don’t make political predictions. But I will say that if you told me when I got into Congress seven-plus years ago that we would have been able to increase funding for legal services by $130 or so million, that in the CARES Act we put in additional $50 million — so nearly $200 million this year over where we were when I started this — if you told me we were going to found a caucus and get strong bipartisan support, I would have told you that’s probably a pipe dream.
I do think there’s an acknowledgement from people across the political spectrum that one of the challenges that we confronted coming out of the last crisis was that the disparities in power that we saw going into 2008-2009 were exacerbated by the structure of our recovery. People who had access to wealth and power have gotten more wealthy and more powerful coming out it. And people that didn’t have struggled to recover — still.
This is one of those ways that we can ensure that that playing field is level.
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