Remarks as Prepared for Delivery
Thank you to the Maryland Access to Justice Commission, and Executive Director Reena Shah, for this invitation to join your second Spark Series event. And thanks to the commission, Attorney General Frosh, and the Maryland State Bar for leading the charge on access to justice.
We all know the incredible responsibility, and power, that we have as members of the legal profession. During the height of the Civil Rights Movement, then-Attorney General Robert F. Kennedy urged lawyers, as part of our obligation to support equal justice under law, to use our knowledge and skills to advance the rights of those who are most vulnerable. He said: “It is time we used those traditional skills — our precision, our understanding of technicalities, our adversary skills, our negotiating skills, our understanding of procedural maneuvers — on behalf of the poor. Only when we have done all these things, when we’ve created in fact a system of equal Justice for all — a system which recognizes in fact the dignity of all [people] — will our profession have lived up to its responsibilities.”
It is remarkable to see in Maryland, how you are living up to those responsibilities, as the second state in the country to provide statewide access to counsel in eviction proceedings. I know that effective implementation of this law will still require full funding, and you’re pursuing that as we speak. But your efforts already provide an example to the nation, showing us what is possible with commitment, creativity, partnership — and action.
The housing crisis is a longstanding and systemic issue. We have never had a national infrastructure or national policy for preventing avoidable evictions. Even before the pandemic, over three million people were displaced in a typical year. People and families in this country are often evicted for amounts as little as $500 or $600 of back rent. The CDC’s eviction moratorium and other state and local moratoria across the country helped prevent an unmitigated crisis during the pandemic, but those were temporary fixes.
And while the pandemic exacerbated the housing crisis, it also served as a catalyst for reform, including in Maryland, and thanks to those in this room. I know that it took leadership from the state legislature, and hard work and collaboration of AG Frosh and your office, the Access to Justice Commission, the State Bar, the Maryland Legal Services Corporation, the Access to Counsel Task Force, and the Access to Counsel in Evictions Task Force, among so many others. Congratulations on this incredible accomplishment. I hope states and localities across the country will follow your lead in securing a right to counsel for tenants.
We have worked — you all have worked — to build bold and innovative reform during this crisis. And we cannot go backward.
Let’s make these changes lasting ones, and let’s continue the conversations around access to justice and examining and reimagining the tools and structures we have to help people in need. We all know there is always more work to be done. We at the Justice Department look forward to finding ways to partner with you and uplift your incredible work as you continue the phased launch of your program.
I’d like to highlight this evening some of the ways we have focused on access-to-justice work at the Justice Department, including in partnership and in support of state and local efforts like yours. Our role, often, is to support the visionary work of state and local partners, like you, who are leading the charge in access to counsel and access to justice work.
First, on the topic of the housing crisis: as Attorney General Garland has said, addressing housing in this country is a critical part of the Justice Department’s reinvigorated commitment to increasing access to justice for every American, and reducing the barriers and entrenched disparities in our civil legal systems.
We know that the housing crisis is a racial and gender justice issue because evictions disproportionately affect women and people of color. And it is a poverty and economic security issue because of evictions’ long-lasting effects on families. We also know, as the CDC has made clear, that evictions are a public health issue because of the risk of community spread of COVID-19.
Last spring, we launched an effort to promote the use of court-based eviction diversion strategies and access to counsel in evictions proceedings.
In June, I sent a letter to state court chief justices and court administrators around the country, urging them to implement eviction diversion strategies and encouraging courts to build out more comprehensive programs that might include access to counsel. Many courts have taken significant action, even in places where state-wide access to counsel was not within reach. I am hopeful that more and more state courts will implement similar programs in the coming months.
Prior to 2020, the Eviction Lab found that of the roughly 3.6 million eviction filings in a typical year, only 3% of tenants have legal representation in eviction proceedings, compared to over 80% of landlords. We all know that providing legal counsel to tenants can make an enormous impact on the resolution of eviction cases. A study of Cleveland, Ohio’s right to counsel program showed that when tenants had an attorney, 93% were able to avoid eviction or an involuntary move.
That is why you are working so hard to get counsel for tenants in Maryland, and it is why Attorney General Garland issued a call to action, asking the legal community to volunteer time and legal assistance to confront the ongoing housing and evictions crisis. As a result, law students and lawyers from across the country have stepped up to take on cases. They mobilized pop-up clinics and medical-legal partnerships to help families facing eviction stay in their homes and helped implement eviction diversion programs. They developed new digital platforms designed to ensure that housing court proceedings could be carried out fairly.
And that is just one piece of our work. Last fall, Attorney General Garland announced that the Justice Department will reinvigorate its role in leading access to justice policy initiatives across government through the launch of the Office for Access to Justice — our “ATJ.”
We are not just relaunching the office, we have been working on a phased strategic growth plan to modernize and expand the office’s work. Leading up to the launch, my staff met with almost every state access to justice commission across the country. We were pleased to hear from the Maryland Access to Justice Commission, and were grateful to speak with and learn from Executive Director Reena Shah in those meetings.
Alongside the office launch, we in the Justice Department joined the White House to reinvigorate the Legal Aid Interagency Roundtable — a partnership of 28 agencies and growing. In October of last year, the roundtable released the 2021 Legal Aid Interagency Roundtable Report, which explored the impact of the pandemic on access to programs, initiatives and services across the federal government. The roundtable also held its first member convening in December, and discussed expanded interagency collaboration, including through process simplification, innovation and language access.
There is much more that the Justice Department can do to pursue access to justice. And our ATJ team is already hard at work.
We are working to bolster and expand the Federal Pro Bono Program by moving it into the Office for Access to Justice, and we are continuing to work to expand its resources, personnel and impact.
The Federal Pro Bono Program, led by the Justice Department, links federal government attorneys — from over 50 participating federal agencies — with legal services organizations to conduct pro bono work.
We are exploring ways to maximize and increase our grantmaking programs to focus on and support access-to-justice work. We are assessing how to catalyze broadscale transformation and innovation in our legal systems, including by exploring ways to support the innovative state-led access to justice initiatives, like in Maryland.
ATJ is also partnering with the U.S. Trustees Program to assist individuals in financial distress to access the bankruptcy system and obtain needed relief. In December, we convened a stakeholder listening session with ATJ, the U.S. Trustees Program, and my office. We are using the feedback we received to inform work in a number of areas to remove barriers for lower-income debtors. For example, low-income debtors have difficulty accessing and affording legal representation: The Bankruptcy Code and legal precedent effectively require chapter 7 debtors to pay their attorneys’ fees in full before filing. The Trustees Program is working on guidance related to alternative fee arrangements in chapter 7 cases, to help both debtors and practitioners.
ATJ is also exploring ways to pursue economic justice and combat the criminalization of poverty. As you may know, in 2016, when I was head of the Civil Rights Division, I co-authored a Dear Colleague letter to state court systems on the use of fines and fees with the Office for Access to Justice. That guidance was inspired by what we discovered in the 2015 investigation into policing in Ferguson, Missouri, where we found the city “routinely issued arrest warrants … without any ability-to-pay determination”— in part to increase revenue. In the letter, we clarified the legal framework that governs the enforcement of fines and fees, including the importance of procedural protections and, in many cases, the right to counsel. We are now examining reforms that have taken place across the country since issuance of that letter, as well as recent caselaw and research on the same topic to assess next steps.
And we’re working to build out initiatives to support individuals in immigration proceedings.
For example, over the past three decades, it had been the policy of the Executive Office for Immigration Review (EOIR) to require individuals in immigration court to file a FOIA request in order to obtain a copy of their own records of court proceedings. Such a process created burdens on individuals in immigration courts in obtaining such records. Just last week, EOIR changed its policy so that parties can obtain their records of proceedings directly from the immigration courts or Board of Immigration Appeals, without requiring them to make a request under the FOIA. By helping to mitigate barriers to parties’ obtaining their records, this change in policy will promote parties’ access to justice within the immigration court system.
The Office for Access to Justice is also working to expand support for public defenders nationwide. This week we will be celebrating the 59th Anniversary of Gideon vs. Wainwright. The promise of Gideon, that every person accused of a crime has the right to counsel, whether she can afford to pay for it or not, depends on giving defense counsel, sufficient resources to do their jobs, and a voice in policy conversations as well. And a strong defense function supports the mission of the Justice Department — to preserve integrity and justice in our criminal enforcement, and to pursue equal justice for all.
Finally, one thing we heard very clearly in our meetings with you, and with other state access to justice commissions, was a desire for stronger collaboration, data sharing, and partnership between the commissions and the Justice Department. Regular collaboration with state access to justice commissions will be a priority for the Office for Access to Justice. The office looks forward to launching regular quarterly meetings with state access to justice commissions. This will allow DOJ to amplify, and allow other states to learn from, the great work states are leading, including what you are doing in Maryland. It will allow innovations across this country to be scaled up and to spread. It will allow for resource, data, and information sharing. And it will allow the Justice Department to learn, support and work with the states in this mission for access to justice.
These steps are only the beginning, and there is so much more to do. As you know more than most, making the promise of access to justice real means more than a successful day in court. It can prevent catastrophe, including the loss of freedom, the separation from family members and children, debt collectors garnishing wages or domestic violence victims not obtaining restraining orders. And, of course, it can mean loss of housing, which can have devastating economic, physical and psychological consequences for individuals and families.
Access to justice is not simply an initiative or a project, and our innovative efforts to combat the justice gap cannot end with the end of the pandemic. Access to justice is part of the foundation of this country and the ideals we are still striving to realize. The promises of freedom, equity and justice for all. Disrupting the devastating connections between race, poverty and injustice requires commitment from all of us. That is one reason I am so gratified to see all of you in this “virtual” room, fighting for and working towards change.
It is an honor to join you today. Thank you for your commitment to equal access to justice. The Justice Department looks forward to continued partnership with you.