Access To Civil Justice: Racial Disparities and Discriminatory Impacts Arising from Lack of Access to Counsel in Civil Cases (CERD Shadow Report, 2008)

While the U.S. Constitution has been construed to provide a right to counsel at
state expense for those accused of a crime, there is currently no such federal
constitutional right for litigants in civil cases, even when the litigant is indigent and even
when the case involves critical needs such as child custody, housing, food or health.
Instead, civil counsel is provided through legal aid and pro bono programs that are
severely underfunded, such as the Nevada civil assistance program cited favorably at
paragraph 152 of the U.S. Periodic Report to the CERD Committee. Many states provide
a right to counsel at state expense for parents when they stand to lose their parental rights,
and for children in abuse and neglect cases. Indeed, more than half the states have
established such a right for indigent parents, even though the U.S. Constitution does not
mandate it. But nowhere in the United States is the right to civil counsel comprehensive.
A recent survey of civil legal aid in the U.S. estimated that less than 20 percent of
indigent civil litigants’ legal needs are met under the current system.
Since racial minorities are disproportionately poor, they are disproportionately
harmed by the lack of civil counsel. Empirical studies confirm this racially disparate
impact. This racial justice issue is within the scope of articles 5 and 6, which address fair
procedure and adjudication through the lens of equality and non-discrimination. Both
articles include civil matters and explicitly require that States take positive steps to ensure
effective access to the apparatus of the State’s justice system. The Committee has underscored the importance of counsel in realizing these rights. General
Recommendation XXXI highlights the importance of making it easier for victims of acts
of racism to seek civil redress in the courts by, inter alia, providing free assistance of
counsel. General Recommendation XXIX addressing “Discrimination based on
Descent” recommends more generally that State Parties “take the necessary steps to
secure equal access to the justice system for all members of descent-based communities,
including providing legal aid, facilitating group claims and encouraging nongovernmental
organizations to defend community rights.”