Remarks by Karen Lash, Access to Justice Deputy Director, on Civil Legal Aid Research at the University of South Carolina School of Law

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[1] I’m here to talk about Policy by Numbers.  Let’s start with its iconic predecessor, Paint by Numbers.  You remember them.  [2] The kits came with brushes, as many as ninety numbered paints, and a canvas with tiny numbered spaces waiting to be filled in.  You painted in the spaces and bit-by-bit a masterpiece emerges. 

Their heyday was the early 1950s, propelled by postwar prosperity and new-found leisure time.   [3] Just as everyday people could now own a washer dryer, the paint-kit box tops proclaimed, "You too can paint a beautiful picture in oils the first time you try!”  Landscapes, seascapes, and pets were popular, as was high art like Leonardo da Vinci's The Last Supper. 

Paint-by-numbers matters for this Roundtable for two reasons: 

First, at the height of paint-by-number’s popularity, it landed in the White House.  In 1954, President Eisenhower’s appointment secretary, Thomas Edwin Stephens, distributed kits to Cabinet members. Stephens left the impression that the President (well known as an amateur painter) wanted them to paint, so the Cabinet members opened their kits and got to work.  Even J. Edgar Hoover.  Stephens installed the paintings in the West Wing for all guests and dignitaries to see. 

Second, by the late 1950s, the immensely popular hobby provoked great debate. Critics suggested painting by numbers defiled the public's perception of art.  Paint-by-number fans countered that it brought art to the masses.

Interesting as that is, I told you that story so I could tell you this one.

In Washington DC something called the “evidence-based agenda” has been installed literally and figuratively in today’s White House and throughout the Executive Branch.  Cabinet members and every Federal department and agency must collect empirical data to give lawmakers and law-shapers a full picture of the factual context in which those rules are applied.   Each data set is like a color, and together empirical studies create a vivid and much more accurate picture.  And, as with Paint-by-numbers, evidence-based policy-making has its share of critics as well as fans, both in and outside the Federal government. 

Many kudos and appreciation to the University of South Carolina School of Law, and especially Elizabeth Chambliss and the Nelson Mullins Riley & Scarborough Center on Professionalism that she directs, for turning their collective talent and resources to how the evidence-based agenda affects the delivery of civil legal services to low- and middle-income people.

 It’s an honor to join so many of the nation’s leading academics and practitioners who are painting a picture about legal aid.  My colleagues and I at the U.S. Department of Justice Access to Justice Initiative are your very grateful consumers.  But I also want to tell you how your research is critically important to the men, women and children served by the civil legal aid community. 

I’ll proceed in three parts: first, describing the President’s evidence-based agenda; second, telling you about the ATJ office and how we use – and need more of – your research; and last, offering some examples of how the evidence-based agenda trickles down to universities,  local governments and nonprofits.  In sum, research is no longer optional.  Indeed, the expansion of civil legal aid depends on it.

[4] In President Barack Obama's First Inaugural Address -- January 21, 2009 – he forecasted one of the defining directives of his Administration:

“The question we ask today is not whether our government is too big or too small, but whether it works -- whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified.  Where the answer is yes, we intend to move forward.  Where the answer is no, programs will end.” 

Many in government have spent the last six years embedding that statement into how we do business.

[5] Every year, the White House Office of Management and Budget – or OMB -- launches the budgeting process by sending every Department and Agency head the “Budget Guidance” memo. It tells the Department what should be in its proposed budget if it’s to ultimately be included in “the President’s budget.”  You could say that Budget Guidance is the opening salvo in the conversation among the different parts of the Executive branch, and ultimately between the Executive and Legislative branches.

This slide shows the actual language.  The most recent OMB budget memo tells agencies that their budgets should advance “evidence-based policymaking by increasing access to administrative data, utilizing low-cost randomized trials, embedding evidence and evaluation in grant programs, and strengthening agencies’ capacity to build and use evidence.”

The imperative applies to both past and future programs.  [6] The next slide pops out the language in the OMB memo explaining that Agencies must describe progress they’ve made on building evidence or strengthening evidence-building capacity, and its impact on budget and policy.  Moreover, proposed new programs and major program changes must be justified by available evidence, and empirical measures for evaluating the program’s success. [7] There’s even a section of the White House website dedicated to even deeper understanding of how Evidence & Evaluation works.

To illustrate how it plays out, [7] here’s the Justice Department’s Office of Justice Programs – our grant-making arm -- budget submission cover page.

[8] Thanks to a documented research deficit concerning civil legal aid, note that the President’s budget for the second year in a row requests that DOJ’s National Institute of Justice, together with the Office for Access to Justice, the office in which I work, administer a $2.7 million fund for civil legal aid research.  While Congress declined to appropriate funds for this last year, we’re trying again. 

[9] And here’s the “Congressional Justification” language for the request for $5 million for a competitive grant program that would incentivize civil legal aid planning processes and systems improvements, supporting innovative efforts to connect and expand civil legal assistance services at the state, local and tribal levels. Note the “Justification” heading.

[10] Now notice the key role of the Legal Services Corporation’s studies that show how half of those eligible are turned away.  And only 20% of legal needs are served.  American Bar Foundation Fellow Rebecca Sandefur’s study Access Across America, demonstrates no state has a truly integrated civil legal aid system.  Without those studies, we couldn’t make it into the President’s budget.  Thank you.

Of course, the imperative for empirical data also occurs in nonprofits, foundations, faith-based institutions, and community-based organizations.  This is the world we’re living in, which makes the work you do more critically important than ever.  It ensures civil legal aid’s contribution to public and private efforts to help people get the help they need and help government programs be both effective and efficient.

The 2016 Budget is all about investing in growing the evidence base.  How does this implicate our work in the Justice Department’s Office for Access to Justice?  First, a little background.

We opened in March, 2010, born of the determination of Attorney General Eric Holder to increase access to justice in both the civil and criminal justice systems. Two small, manageable tasks for a tiny staff without traditional tools like grant-making or enforcement authority.  Yet we’ve discovered that other useful tools came with our little office in the Main building of the Justice Department.  For example, on the defender side of our work we recently teamed up with the Civil Rights Division so the Department could weigh in on three right-to-counsel cases, an unprecedented move in the Department’s history. 

On the civil side, the centerpiece of our work – like so many things in government – gets an acronym: LAIR, for Legal Aid Interagency Roundtable. 

It all started with the Department of Labor.  We had no studies about the role of civil legal aid, but lots of data about old criminal records making it hard for people to get jobs.  That suggested that a person going through job training who also gets legal help to expunge his record, or remove errors from his RAP sheet, or reinstate his driver’s license so he can drive to the interview, would be more likely to get and keep a job.  The Department of Labor saw how legal aid could make their programs more effective and now it expressly allows, even encourages, and sometimes even requires that grant applicants incorporate legal services in their job-training grant proposals.

So we wondered if we could scale up.   Many other federal programs can be more effective when they include legal aid.  But going program-by-program, agency-by-agency, would take a lifetime. 

We made a proposal for what would become LAIR. Examples of the research that made LAIR possible:

• According to studies by economists Amy Farmer and Jill Tiefenthaler, a successful domestic violence prevention program has to include legal aid – but not all do;

• Multiple studies conclude that sometimes a doctor needs to prescribe a lawyer to improve individual and population health -- but that connection is all too invisible among too many health professionals.

Equally important to our case were studies like Rebecca Sandefur’s work  – demonstrating that most people in America – in and outside of government offices -- don’t really know what civil legal aid is or why they should care.  They are prone to mistaking a problem with unemployment, truancy, housing or access to health care as just a part of life, little guessing that legal solutions abound.  The Federal government should fix that, we said.  A big part of LAIR’s work, it’s turns out, is to systematically raise awareness about the many ways that legal aid can help ensure Federal programs pursue their core mission.   

Because money always matters, it helped tremendously to have studies showing that legal aid can also provide benefits greater than its cost by intervening and preventing more costly injury, homelessness, and crime.                

The overall case was persuasive to White House Domestic Policy Council and Justice Department leadership – who co-chair LAIR – and the 18 participating Federal entities, who together work to identify Federal grants, programs and initiatives where legal aid can make them produce even better results for the people they serve. LAIR is located at the sweetspot where federal agency goals overlap with legal aid’s, transcending zero-sum contests so that everyone comes out ahead – especially, when we can prove, or predict, based on evidence, that everyone comes out ahead. 

We couldn’t have done it without you.  Research helped launch LAIR and helped secure many of its successes over the last nearly 3 years:

• more than two dozen federal grants involving reentry, access to health care, citizenship, homeless veterans, and other issues have been clarified to allow legal services;

• dozens of presentations to federal grantees, federal colleagues, and the civil legal aid community to share the news about how legal aid advances federal priorities;

• new training and technical assistance, and new funded and internally driven research;

• International recognition– last month LAIR made it intothe US Universal Periodic Review submission to the UN Human Rights Council; and

• Domestic recognition -- NLADA’s Government Service Award.

As I said, we couldn’t have done it without you.  A few concrete examples of those successes include:

National Center for Medical-Legal Partnership and Ellen Lawton’s collection of studies establishing the connection between legal services and improved health outcomes, contributed to Health & Human Services Health Resources and Services Administration (HRSA) decision to clarify that “enabling services” for their community health centers funding could include legal services;

• [11] Domestic violence studies backed up new legal services language in the Violence Against Women Act reauthorization bill enabling more of its grant programs, like those targeting rural communities, to include legal aid;

• Veterans Affairs own annual national survey of homeless veterans and their social services providers, concludes that four different kinds of legal assistance are among the top ten UNmet needs of homeless veterans – so they actively promote integration of legal services in their veterans homeless prevention grant programs;

• The National Science Foundation’s funding of a workshop that many here participated in, and subsequent Dear Colleague Letter signaling the importance of civil justice research applications – that some in this room, like Jim Greiner, and Tonya Brito, took full advantage of.  You can see all of this and more at our “LAIR Toolkit.”  [12] It’s online at justice.gov/atj/legalaid and is chock-full of useful information about civil legal aid. 

One tab lists what we call “case studies” on how civil legal aid supports federal efforts to help veterans, help people get health care, prevent domestic violence or homelessness, keeps kids in school, helps people with criminal records reenter society.  We support each example with evidence – in a box at the bottom of the first of the two pages -- that connects legal aid to the solution.   [13-18]

And in an effort to raise even greater awareness of the need for legal aid, and to encourage greater Federal attention to closing the “research gap,” our May LAIR meeting will be convened by DOJ’s National Institute of Justice – the Department’s research arm – ATJ, and the National Science Foundation to examine available research and research needs on those civil legal aid issues that intersect with the criminal justice system, including elder abuse, domestic violence, reentry, trafficking, and consumer fraud.

Finally, on to the trickle down theory.  Two currently open grants – that include legal aid -- exemplify the empirical imperative as it plays out in anti-poverty policy and programming. 

[19] Here’s one of the Justice Department’s Second Chance Act grants, to help people involved in the criminal justice system get, as the title says, “a second chance”. 

Note that assessing outcomes is a DOJ priority; don’t apply if you aren’t committed to collecting the data; and that a research partner is mandatory.

[20] Here you’ll see an excerpt from the Department of Labor’s Face Forward grant, noting that “because there is some evidence” that civil legal aid makes a difference for youth in the criminal justice system, it’s not optional for a successful application.  

While not everyone agrees with evidence-based policy making and not everyone is happy with what the evidence in a particular case might show, data-driven decision-making is here to stay.  It is embedded throughout the Federal government and in the for-profit and non-profit world.  “Where are the numbers?”, “What data do we have?” “Where’s the evidence to support that?” are questions every savvy decision maker asks.           

All of which is to say keep producing your studies, articles, reports, data analyses and evaluations.  Keep inviting us to events like this, which identifies research gaps.  If federal policy can be compared to paint by numbers, you could say that the data helps paint a picture of the power of civil legal aid.   It’s far from complete, but as the data continues to accumulate the justice-by-numbers landscape gets brighter.  Thank you.