The Law and the Poor

JOUNRAL OF SOCIAL ISSUES VOLUME 26, NUMBER 3, 1970

The Law and the Poor

Jonathan Weiss Columbia University Center for

Social Welfare Policy and the Law

The poor confront the law as others do and also differently. Dependent on where they are, their access to lawyers, their ag- gressiveness or natural shrewdness, sometimes the poor may achieve results from the law and its agents similar to what others who are better situated achieve. Such successes are hardly the rule, however. The poor have almost always had uniquely bitter experiences with the legal process.

Law as an Institution The law is an institution and deals with other institutions.

All people confront it as a source of sanctions and hence, to some degree, of fears. Crimes are not committed in front of policemen. Illegal acts are taken with a conscious and unconscious calcula- tion of risks. Sanctions are not only criminal-i.e., arrest, deten- tion, fine, incarceration, or execution-they are also “civil.” “Civil” sanctions in practice may be criminal, as when juveniles are incarcerated for being incorrigible, or aberational activity results in being incarcerated as insane, or old age leads to forced seclusion as a “senior citizen.” More broadly, rules which are violated, often without will to violate, lead to real sanctions-loss of license, loss of money, loss of entry to a union or a job or even a seat on the stock exchange. Citizens universally confront the institution of the law as an area of forbidden acts whose violation sanctions deprivations.

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The law also is a functioning institution with a series of commands and demands. Forms must be filled out; taxes paid. Voting or driving requires registration. Most importantly the law commands direct recourse to it as an institutional process. To collect money counsel must be retained, threats made to sue, suits executed, etc. Disputes are channelled away from all processes but the court (including the informal effects of perceptions and predic- tions of what the courts will do if the question is put to them). To obtain what is wanted in a dispute about money, obligation, freedom, or property, the law commands that people come to it. They must follow its commands of how to present their side of a question. The legal machinery operates both to sanction and to com- mand certain procedures and behaviors in order for individuals to continue in society and to profit from it.

What does the institution of law offer in return? In the main it offers a type of societal support. It provides a common referent for disputes. It provides rules for the conduct of business behavior and money manipulation, and rules about acts which are con- sidered harmful to others or society.

Confronting a Bureaucratic Hierarchy . . . To offer this support the institution of the law operates as a

series of bureaucratic institutions. First, what is called “administrative law” is purely bureaucratic. When the government must dispense favors, collect money, or regulate conduct, officials are established who have chains of power, ability to refer to internal rules, and the power to “pass the buck. ” Police departments also operate as bureaucratic machines (Goldstein, 1958); juvenile courts are a separate little bureaucratic world (Allen, 1964). As the poor sadly know, “welfare” programs are a mysterious world governed by a petty officialdom which marches to a distant and certainly very erratic drummer (Sparer, 1965). In short, the law is confronted by individuals as a series of domains of authority. Each domain is defined through the operation of an institutional hierarchy. It is in the context of a category of rules, rewards, and denials, effectuated by an organization of those charged by law to execute power, that the commands and sanctions of the law have reality. For all men this is true. Yet the concrete reality of the law has added dimensions for the poor. These extra dimensions make the social and psychological meaning of the law radically different for poor people.

For the Poor, the “System” is an Enemy The poor are mysterious to those not so classified. Com-

mentators on poverty agree that the poor are characterized in

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general by passive rather than active reactions to everyday situa- tions, and by dependence (Duhl, 1963; Riessman, Cohen & Pearl, 1964). The institutions with which they deal are not like the Secu- rities Exchange Commission or the Federal Communication Commission. The SEC or FCC are institutions which, if granting a favor, permit progress toward money or prestige; these are institutions whose interest is sought and whose favor is curried. The poor, on the other hand, face only negative outcomes in their institutional dealings. They fear arrests by the police, humiliation by the schools, and starvation at the hands of those institutions supposed to alleviate poverty. For the poor, “the system” is an enemy. The law has often been the instrument of, rather than a bulwark against, the oppressors (Alinsky, 1964; Silberman, 1964; Smith, 1919). Lawyers for the poor call the “Fair Hearings” of the Welfare system “Unfair Hearings, ” the “landlord-tenant court,” a LLZundlord court.” All too often, in welfare hearings the results are predetermined. In the special “landlord-tenant” courts, the judges expect tenants to pay, eviction can be accom- plished almost overnight, yet tenants cannot complain about slum conditions. These tribunals often operate to oppress the poor rather than dispassionately to settle disputes. When dishonest salesmen or slumlords seek to fulfill their goals they use the courts and their lawyers. The poor do not usually use this alternative. Mr. Justice Frankfurter has reminded us of the relevance in our own time of the words of Anatole France, “The law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”’

In short, the societal relations of the poor in many parts of this country are reminiscent of a feudal kingdom in which survival is obtained by paying fealty to various lords: the rent man, the grocery man, the policeman, the furniture store man-against whom the poor have no rights they can know or exercise, but merely some standard expectations of what to give and what they may expect to receive in return. The everyday lives of such citizens reveal that they have not yet graduated from “status” to ‘Leon- tract.” Those who represent or can invoke the law by suit against them treat the poor as dependent creatures. They live at suffer- ance of the landlord as well as that of a welfare worker. They fear the suit by the company which defrauded them (now hiding be- hind legal technicalities as to who is responsible for what), as well as arrest by police whose pay is partially the pleasure of the prowl of power. There are real inequalities, political and social, which causally or essentially are promulgated by the legal rules.

‘In Griffin v. Illinois 351 US 12,23 (1956) concurring.

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Special Rules of Access and Durability The position of the poor in relation to the law and its institu-

tions is governed by a body of distinctive substantive and procedural rules. It is not simply that the institutions which deal with the poor treat them as creatures of dependent status. The system of courts has fashioned special rules and special problems for the poor.

The special rules are of two kinds. First are those procedural rules which govern availability of and survival in forums. Second are the specific substantive rules which discriminate against or stigmatize the poor. The rules of access and durability are special rules of the courts and their agents. Administrative agencies often are steeped with rules which have unconstitutional and illegal provisions. Even a non-scholar can describe a long list of defects in these rules which are clearly visible even in a superficial survey (Sparer, 1965). The rules endure because the poor have never had advocates or forums.

For example, for over thirty years the vast majority of the states refused to place a mother and children on a state welfare budget if they had traveled to the state within the preceding year. The constitutional defects in these rules are obvious-state welfare budgets primarily use federal money. This is one unified country where people have a right to travel. They cannot be starved because they exercised this right, especially when children starve because their mother has moved. People have a right to pick the best place to settle under their Freedom of Association (1st Amendment to the Constitution). They then must not be treated differently. Yet this administrative rule survived over thirty years. It took two years of consecutive argument in the United States Supreme Court to destroy it. The final Supreme Court decision came down close to three years after the first case was filed to invalidate that one rule. Even after the decision, New York State promulgated almost the same rule, and lawyers had to file suit over again. As a result, the same issue is once again in the Su- preme Court. The rule is one of many rules that effect millions. It is estimated that $36 million more will go to people on welfare as a result of that Supreme Court decision.

To Sue a Bureaucracy . . . It is a long and cumbersome route to sue against a rule. In

practical terms the only rules that the poor may sue against are those that are clearly unconstitutional, not those that are blatant- ly unreasonable-because the latter fall in the range of administrative “expertise. ”

Litigating unconstitutional rules is arduous; there is a


myriad of them. Litigation is a courtroom procedure. In fighting with a bureaucracy, there are more ways than one to skin a cat. General Motors and General Electric do not just simply go to court. They know legislators; they have access to the press; and they have many means of bringing pressure. They also, more importantly, have the initial power of confrontation. When a welfare mother comes in to ask for her monthly pittance, she is just one of many who seek aid for their children. When GM or GE seeks an exemption from restrictions on foreign investments from the Com- merce Department, they confront not only the government but individual lawyers, clerks, and decision-makers us institutions, and all are somewhat impressed by their implicit power and their actual size and strength. The monoliths of capitalism use many routes of persuasion to confront the institutions which regulate and offer benefits. They have the image of conquerors, while a poor person seems to be looking for an individual “handout.”

In this context, the importance of durability cannot be over- rated. Just as the poor have very few forums and access to even those has been rare and difficult, the staying power of the poor is often weak. GM and GE have the endurance and strength to use all forums. If they fail, they can try again. If they can not pressure an administrative agency, they can go to court. If that fails, they can try to change the law. If that fails, they can put new pressure on the administrative agency or hope to influence whoever in the future will be in power. During all this time they will merely be lacking more power and profits, not facing destruction. A poor person can only attack rules by access to the courts. Access is difficult, and the individual may literally starve before the case is finished. If a welfare mother does not win a temporary victory and does not have private charity to support her while waiting for judgment, her attack on the one year residency requirement van- ishes with her disappearance into death or another place where she could receive support. The same is true when the rules governing eviction from public housing are at fault, or when trials which test the criminal or juvenile courts are fought. Individual clients may not survive the process; often a whole case is about the client’s continued viable existence.

In Forma Pauperis The poor face a different series of rules when dealing with the

“law” directly in courts. First, there are financial barriers. Al- most everything costs money-jury trials, docketing fees, publica- tion for divorces, transcripts, transcripts of pre-trial stuff, pre- paring records for appeal, docketing appeals, and losing appeals.

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For example, in New York State to appeal unemployment in- surance cases, the domain of the poor, 19 briefs and 19 records have to be submitted to Albany. The duplication costs in a recent case of this author’s were $100 exclusive of postage and typing. The procedure seems designed to eliminate appeals.

A poor person may escape some of these fees by labeling, i.e., stigmatizing, himself as different. There is an ancient rule, in forma pauperis, now codified in most states by statute, which allows the suspension of some fees. The way in which in fonna pauperis is obtained shows how the poor are treated and labeled differently. A special motion to proceed as a poor person must be made, generally with copies served on the city or state. In support of the motion, the lawyer must disclose the essence of his case. He must state that he thinks it is a good case. His poor client has to list all sources of income, all items of property real and personal, he must state that no one else is interested in the case, that he believes he has a good case, and that his lawyer serves without fee. The court then considers the papers and in its discretion grants that permission.

Surrendering Privacy . . . A poor person, if successful, thus enters the case with a clear

label and stigma attached to him. The papers themselves which have been entered in fonna pauperis are now public documents that tell the world all his sources of income. (So if an ex-husband pays some support to a woman on welfare, all his acquaintances can find out how much if she files in fonna pauperis.) The poor person’s revelation must be complete. This author has had a client denied his in fonna pauperis request because, after coming off welfare to work at a menial job, his affidavit did not specify all his personal property-presumably accumulated at the minimal wage he earned. A judge who sits on a case is alerted by this rule to the fact that a person is not paying his counsel; if he has a bias against free legal services, this may prejudge the case. In short, the poor person must surrender privacy, accept the label of “poor,” and anticipate the possibility of judicial prejudice simply to avoid the payment of fees.

The consequences of proceedingfonna pauperis are interesting. Such a judicial grant of grace does not pay for all the necessities. A corporation or a rich man of course has access to witnesses and expert testimony, which a poverty victim does not have. The corporation and rich man can pay to bring and pay to testify; the poor person cannot. Cases are theoretically built on evidence. Yet the poor lose their children in family court regularly on the basis of uncontradicted psychological testimony, while the rich have a battle of experts about visiting hours.


Further Discrimination . . . The discrimination cuts deeper. The poor have no way of

getting pre-trial discovery in which the whole trial is really played out. In most states, for example, witnesses can be brought and examined at great length to have a transcript ready for the trial. But this must be paid for. To appeal a case the court has to have the record. What this means is that someone has to type a copy of every paper filed and every word said, often volumes long. Someone has to pay for it all. All extra-judicial activities come dear and the poor have no money.

There is some judicial relief for extra-judicial expense. The poor may not have to bring their briefs on appeal; they may file xeroxed or mimeographed copies. This does save money, but, as those who publish know, manuscripts do not read as well as printed pages and may even indicate a lack of care to a judge. Once again the scarlet letter P is imprinted on the case and the court decides arguments posed between printed bound briefs and the inferior-looking duplicate typed manuscripts of the poor.

Further, it may be almost impossible to proceed in joma pauperis in courts where the poor are prevalent. In New York, for example, before the time when the motion to proceed to in fonna pauperis is granted, the time in which a landlord-tenant case must be answered and a jury demanded runs out. This means that the jury demand is either forfeited or paid for. Having this in f o m a pauperis status granted is the result of considerable paper work, an additional burden on the poor and on the lawyer who serves without pay. Time sometimes makes it impossible, as in a case where an eviction notice will be executed overnight, or a repossession effected right away, or a person immediately incarcerated. It should be noted that in spite of all the reforms suggested for bail (and fines), which are areas well known to have pure economic discrimination, no one has ever figured out how to use in joma pauperis for those matters.

Substantive Legal Differences for the Poor The rules governing the relationships of the poor among

themselves and between them and society are often substantively different than those for the rich. There is a dual system of family law (Tenbroeck, 1964). Welfare in New York insists, for example, that if a mother goes into the hospital or out of town, that she turn her child over to them and sign a release. When she returns to get the child, she is told that she must prove to the welfare department that she is a fit mother. Often it refuses to return the child. In the case of any other parent, the bureau of child welfare would have to go to family court and file a neglect petition. Another instance of

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this discrimination is the release of juveniles. Their release is predicated not on what they have done, supposedly, but on how they will perform in the environment to which they are returned. A boy who steals a lo# Kool-Aid may be incarcerated because of his robbery, though a rich car-thief will probably be returned to his mansion. All of us know that policemen and judges treat the poor quite differently (Goldstein, 1958). Such harsh treatment may have been one of the causes of the American riots (President’s Commission on Civil Disorders, 1968).

No one in this country can be forced to let people into his home unless there is a warrant or a crime being committed. Yet people on welfare are told that they will not receive welfare unless they permit a number of forced home visits a year. The state main- tains the reason is that the purpose of welfare is to help children. The reasoning continues that once a person goes on welfare, the primary responsibility for child rearing is the state’s, and the parent may not be a barrier. Welfare recipients must sign over future earnings and recovery for injuries, sign consent forms for invasions of privacy, etc., etc. (Stein, 1967). This list can be ex- panded to great length and extended into additional subject areas, as others have done elsewhere. It is very clear that many special rules exist which create substantive differences for the poor before the law.

Aduocates for the Poor Recently in the United States some inroads, some slight in-

roads have been made into this thicket. Under the federal government, about 2000 lawyers are paid in various cities to work in neighborhoods to represent slum dwellers. In the neighborhoods, lawyers have discovered that many groups of cases are quite different from those of the middle class (some matters, like divorces without estates, are easier). One group of cases is related to the terrible administrative treatment of those dependent on government largesse for reason of age, blindness, or infancy. Another group of cases concerns children. These cover delinquency and the fight against the filing of neglect petitions on mothers because they live in apartments that are too small (since welfare pays too little), etc. The lawyers who have started suits or sought for political pressure to alleviate these violations are having some impact. As a result of their work, constitutional law and the equal protec- tion doctrine will have many new concrete examples.

The most important benefit from neighborhood law is de- rived from advocacy, and the new notion of justice and pride which emerges for the poor. As an advocate, the lawyer is no Prometheus who brings the fire of middle class truths to the dull


hovels of the poor. He is not a social worker who tries to orient his client to society’s precepts and values. He must treat his clients as equals and conceive of himself as an agent to effectuate their, the principals’, desires in the legal framework and the practical world. The poor man has someone to stand up for him. “Mouth- piece” can be an honorable word. The activity of advocacy can bring the cliches of equal access to the law and the best interests of the child, welfare of the family, etc., closer to the facts. Most important, there is someone who speaks out. The poor man sees advocacy work. By a form of osmosis, this doctrine of rights, this realization of the value of aggressive assertion of those rights, effects his conduct and those to whom he communicates.

Summary The poor confront the legal system with a different set of

problems and obstacles than do others. Two areas of rules are different for them: (1) rules governing access and endurance in the forums of persuasion, and (2) the substantive rules governing the poor as a specially treated group, e.g., dual family law. The first set appear to be permanently institutionalized. They are an area of rules more dependent on society than on the law. The second set are now undergoing constitutional attack. The poor generally are relegated to a status of dependence in relation to institutions. In contrast, others can utilize institutional contacts as an occasion for achieving major personal gain. Providing counsel may remedy some of this disparity. Lawyers working with the poor have exposed the range of specially oppressive rules for the poor. Agencies of government are concerned with administration per se rather than constitutional rights. This has been instructive in the field of jurisprudence. In the absence of legal scrutiny and attack, unconstitutional rules will be promulgated against the weak.

REFERENCES ALINSKY, S. Reveillefor radicals. Chicago, Ill.: Univer. of Chicago Press, 1964. ALLEN, F. A. The borderland of criminal justice. Chicago, 111.: Univer. of Chicago

DUHL, L. The urban condition. Chicago, Ill.: Univer. of Chicago Press, 1963. GOLDSTEIN, J. Police discretion. Tale Law Journal, 1958,69,543. PRESIDENT’S COMMISSION ON CIVIL DISORDERS. Report of the National Aduisoly Com-

RIESSMAN, F., COHEN, J., & PEARL, A. Mental health of the poor. New York: The

SILBERMAN, C. Crisis in black and white. New York: Random House, 1964. SMITH, R. H. Justice and the poor: A study ofthe present denial ofjustice to the F o r . New

York: Carnegie Foundation for the Advancement of Teaching, Bulletin #3, 1919.

Press, 1964.

mission on Civil Disorders. New York: Bantam Books, 1968.

Free Press, 1964.

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SPARER, E. V. Social welfare testing. Ifacfical Lawyer, 1965,12,14. STEIN, J. Eligibility determinations in public assistance. U~ivcr. oj Pennsylvania

TENBROECK, J. California’s dual system offamily law. Berkeley: U . of California In- Law Review, 1967,115,1307.

stitute of Governmental Studies, 1964.

The Law and the Poor

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