THE MORE SOCIAL-justice and human-services advocates look at Governor Mitt Romney’s proposed $22.9 billion budget for fiscal year (FY) 2004, the more they come to hate it. The latest battle? Civil-legal-aid services. The governor’s budget plan trims $2.96 million, or 33 percent, from the $8.96 million account of the Massachusetts Legal Assistance Corporation (MLAC), which doles out state funding for nearly two dozen programs providing legal aid to the poor, the disenfranchised, and those who are otherwise chronically underrepresented in our courts. The governor’s plan would also simply do away with two other legal-aid programs for prisoners and the mentally ill by eliminating the entire state appropriations — $700,250 and $507,000, respectively — for Massachusetts Correctional Legal Services (MCLS) and the Mental Health Legal Advisors Committee (MHLAC). Reaction from advocates for the civil-legal-aid services has been swift: Lonnie Powers, who heads the MLAC, describes the budget cuts as " alarming. " He adds, " The Romney administration doesn’t seem to want low-income people to have access to lawyers. "
Naturally, the administration puts a different spin on its proposals. The intent, officials claim, is not to eliminate programs, but rather to fold such services into one overarching agency. According to Daniel Winslow, the governor’s chief counsel, the Romney budget " discontinues the separate line items " for the MCLS and the MHLAC, yet also proposes to " collapse " all civil-legal-aid services under MLAC. But Winslow admits that nothing in the proposed budget language earmarks funding for legal-aid programs for prisoners and the mentally ill. When asked why no effort was made to preserve all the Commonwealth’s existing legal-aid agencies, he replies, " In times of scarce dollars, the effect of separate line items is to give priority to one group over another. We believe that it’s better to fold all money into one account. In times of scarce resources, there should be equal consideration of merit as to where the needs are. "
To be sure, with a projected FY ’04 budget deficit that may approach $3 billion, the state’s facing tough times. And budget-makers have found themselves in a quandary. On the one hand, no organization that receives public funds will manage to escape cuts. On the other hand, any reductions for civil-legal-aid services will come with a price of which few are aware — one that Massachusetts might not be able to afford down the road.
THERE'S NO QUESTION Romney’s FY ’04 budget cuts to civil-legal-aid services will have severe consequences. Even before the proposed reductions, the MLAC has had to get by with woefully inadequate funding for its 18 legal-aid programs statewide that help the poor, the elderly, the disabled, and the disenfranchised. To date, some 700,000 Massachusetts residents live in poverty — meaning that they earn just under $23,000 a year for a family of four. Yet the legal-aid system boasts only one attorney for every 3500 people, as compared to one for every 136 in the private sector. Clearly, the governor’s latest cuts will exacerbate this disparity. According to MLAC, the $3 million loss will force programs to turn away 10,000 people who would’ve received representation this year. " This is a bottom-line safety net, " says Boston attorney Stephen Oleskey, who serves on the MLAC board. " If you take away people’s right to counsel, you leave them on their own when they need legal advocates the most. "
The administration’s move also seems fiscally unwise, given that legal-aid programs offer a clear economic return to the state. Last year, for instance, after a resident who’d been denied extended unemployment benefits sought out legal-aid services, a Greater Boston Legal Services attorney discovered that the resident (and thousands more) could become eligible by changing a single word in the state training and employment law. Legal-aid advocates lobbied the legislature, which amended the law in December 2002. The new provision brought an additional $10 million in federal funds into the state last year, with another $4 million expected to come in 2003 — $8 million more than what the Romney administration appropriated for all civil-legal-aid programs in its FY ’04 budget.
Meanwhile, legal-aid attorneys represented about 1200 chronically disabled residents appealing for benefits they’d been denied in fiscal year 2002 — and won 90 percent of the time. That translates into $1 million in federal reimbursements for the state that it would not have had otherwise. Similar savings are generated by legal-aid attorneys who enable elderly residents to secure Medicare payments for home health care — and thus stay out of costly nursing homes. And these financial considerations don’t even take into account the societal advantages of helping poor families remain in homes, battered women obtain shelter, and elderly couples get out of mortgage scams. As the MLAC’s Powers puts it, " Given benefits that we provide, our funding is a wonderful investment by the state. "
The argument rings equally true for programs that serve as critical safeguards for the state — and that would be put out of business under the Romney plan. The MCLS, for one, offers a rare glimpse inside the state’s 22 correctional facilities. Unlike visitors and volunteers, the agency’s five attorneys can enter Massachusetts prisons and jails without having to jump through regulatory hoops. They can visit facilities as soon as they hear about brutality or neglect. They can inform legislators of problems that would otherwise go unchecked. For example, Newton state representative Kay Khan, a long-time supporter of prisoners’ rights, got a recent call from a MCLS attorney about a prisoner who’d been placed on " mental-health watch " at MCI-Cedar Junction, in Walpole. When Khan visited the building, she found the inmate holed up in a dank basement cell that the Supreme Judicial Court had banned from use in 1983. Without MCLS, she says, " I’d never have known that this inappropriate place was used to hold people. "
It’s easy to write off prisoners as animals who don’t deserve protection. Yet without a check on the Massachusetts prison system, which houses 21,000 people, what happens behind its walls can become " far more harmful to the person who gets spit out, " contends Michael Cutler, a Boston attorney who handles correctional legal services. As such, the MCLS, he adds, " serves a vital oversight function. "
One look at the agency’s caseload shows just how essential this role really is. Last year, the MCLS won a class-action lawsuit filed against the state Department of Correction (DOC) after the department placed hundreds of young prisoners, most of them black and Latino, in an isolated gang unit, even though DOC officials had failed to follow their own regulations for determining whether prisoners have gang affiliations. Currently, it’s preparing another class-action suit for dozens of disabled prisoners living in the hospital wing at the medium-security facility at MCI-Shirley, where prisoners are routinely denied access to educational and rehabilitative programs. Those who cannot walk are effectively confined to their beds. The affected inmates include a diabetic who, unable to seek alternative treatment for his illness while in DOC custody, had to have both of his legs amputated during his incarceration.
The MCLS, in short, provides a sort of safety valve. Its lawyers diffuse tensions by giving prisoners an outlet for their legitimate claims, which, in turn, averts costly (and deadly) conflicts behind the walls. Though hard to quantify, the dollars spared by such prevention are considerable. On Easter Sunday 2001, the loss of privileges at the Bristol County House of Corrections sparked a riot that caused property damage in the millions of dollars, as well as physical injuries. When the same jail instituted a $5-per-day rent last spring, prisoners vowed to resort to violence — until MCLS intervened. Attorneys have filed a pending suit against the jail for what they term the " unlawful " pay-to-stay fee imposed on prisoners and their families. Peter Kane, a former prisoner who now works as a paralegal at MCLS, says that " as much as people like to forget about prisoners, " some conditions warrant legal action. " Someone needs to look out for them to prevent the kinds of abuses that I saw happening in prison. "
Similarly, the MHLAC acts as a safeguard for yet another constituency that’s underrepresented and susceptible to abuse: the mentally ill. Over the years, the eight-person committee has been the state’s most comprehensive resource for mentally ill and mentally retarded residents, as well as their families and doctors. Last year, MHLAC handled the cases of some 1000 people statewide. Many of them suffer from chronic depression or post-traumatic-stress disorder, yet were denied federal benefits because their disabilities are mental illnesses. Clients include mentally ill residents who cannot get private insurers to cover the costs of psychiatric hospitalizations; mentally retarded residents who are " stuck " in state institutions; and traumatized residents who are held against their will. The agency has become what MHLAC senior attorney Susan Fendell calls " the conscience of the mental-health system. "
In the long run, it’s proven to be quite cost-effective. In 1999, MHLAC helped sue the Department of Mental Retardation (DMR) on behalf of 900 people who had been overlooked since the state began developing community-based services. Today, they’re languishing in nursing homes, unable to get state-funded housing and support services. The result? A settlement in which the DMR has agreed to provide $35 million over seven years so that plaintiffs can receive services at home — a setting that’s far less expensive for the state. Likewise, MHLAC began legal action for hundreds of people who are stuck in state institutions because of a 13,000-plus waiting list for community services at the Department of Mental Health. It sent a demand letter to then-governor Jane Swift, whose administration worked out a funding plan to eliminate the list. Though the suit’s been put on hold because of the fiscal crisis, these residents can rest assured that MHLAC is monitoring the situation. Says Leo Sarkissian, who heads Arc Massachusetts, an advocacy group for the mentally retarded and developmentally disabled, in Waltham, " This office is a modest safeguard on a big-service system. We need more safeguards, not less. "
NOT SURPRISINGLY, the Romney administration downplays the effect its FY ’04 budget would have on the legal-aid system. Officials claim that, even with the proposed reductions, the Bay State’s funding for civil-legal-aid services will rank as the third-highest amount per capita in the country. Spending for such programs in Massachusetts will exceed that of New York, which has more than three times as many residents. " We’d still be one of the leaders nationally, " contends Winslow, stressing that the cuts equal just eight percent of the $38 million that MLAC has received in state, federal, and private monies this fiscal year. Moreover, the Romney plan requires MLAC to create a sliding scale of fees for those who can afford to pay for legal-aid services. Since the state now imposes a $150 co-payment on indigent criminal defendants — who have a constitutional right to representation — the administration sees no reason not to institute a similar charge on the civil side. In its estimation, the MLAC could recover at least $1 million if it charged its clients just a third of the criminal co-pay. " If a person has ability to pay $5 to sue his landlord, " Winslow inquires, " shouldn’t we ask for it? "
Advocates, for their part, view the administration’s claims as " wildly inaccurate. " To begin with, in FY ’02 (the most recent data available), income for New York’s legal-aid programs totaled $104.4 million, of which $43.1 million came from state appropriations. The figure dwarfs even the current $10.2 million this state spent on civil-legal-aid services in the same year. Besides, the issue, according to MLAC’s Powers, comes down to whether the existing system meets the legal needs of the poor. In this context, state funding means more than just eight percent of the legal-services budget. " Loss of that money, " he says, " will weaken the steel that holds up this building. " As for the co-pays, advocates are quick to note that they fit right in with Romney’s rhetoric about people not getting " something for nothing " at taxpayers’ expense. But legal-aid clients already have a stake in these services. Forcing them to pay for access to the courts simply moves us further away from the idea that justice knows no income bounds. Observes Oleskey, " It’s a fundamental principle that all of us are equal in the eyes of the law, not just those who can afford it. "
That’s a message Oleskey and his colleagues have taken to the legislature, which has a mixed record when it comes to civil-legal-aid services. Last year, for instance, legislators rejected an initiative to merge the MHLAC with another legal-aid program — suggesting that they see value in its unique mission. But then, the legal-aid system has remained grossly underfunded for years now. As the budget debate gets under way, some legislators will lead the charge to protect such services. Khan and her fellow progressives, such as House members Ruth Balser and Pat Jehlen, plan to push for all civil-legal-aid programs. As Balser explains, " Providing legal aid for people who struggle with poverty, who suffer from mental illness, and who’re in DOC custody meets my definition of ‘essential’ services. " In the meantime, legal-aid advocates have formed an unusual alliance with some of the Commonwealth’s most powerful private attorneys, such as Verizon general counsel Bill Barr (the former attorney general under the first president Bush), who have called on Romney to protect funding for civil-legal-aid programs. Such an alliance should get the ear of other legislators, too.
In reality, though, the chances of restoring civil-legal-aid funds in the House and Senate versions of the FY ’04 budget look grim. After all, hundreds of programs and services have absorbed deep cuts, and all are competing for money. On top of that, legal-aid programs like the MCLS and the MHLAC don’t have constituencies that appeal to the masses. In this law-and-order climate, prisoners fall below even welfare recipients in Beacon Hill’s hierarchy of despised populations. And the mentally ill have never ranked high on the totem pole of valued lives. Says Jehlen, the Somerville state representative, " Mentally ill people and prisoners are not big voting blocs, and they don’t make good pictures. So they’re not the first for whom politicians will fight. "
Indeed. But the lack of political will to fight for underappreciated civil-legal-aid programs today will only cost the state more in the long run.
Kristen Lombardi can be reached at firstname.lastname@example.org