In 1962, Thomas Kuhn, a physicist, historian and philosopher of science published a controversial book entitled “The Structure of Scientific Revolutions.” Kuhn argued that the progress of scientific knowledge is not always linear and continuous. Indeed, he asserted that most breakthroughs in science occur when a scientist sees an old problem from a different perspective, which opens up new approaches to understanding the natural world that scientists would not previously have considered valid. Kuhn called this phenomenon a paradigm shift.
I’m going to talk today about why those of us who work in the justice system – all of us who care about access to justice – need to shift the paradigm and think differently about the justice system. I will argue that the most exciting and successful innovations in access to justice have come when perspectives have shifted. And I will contend that we will not be able to achieve the goal of meaningful access to justice for all without a paradigm shift.
My modern metaphor for Kuhn’s paradigm shift is a cell phone, specifically, your cell phone camera. Cell phone cameras take pictures in one of two ways. You can take a selfie or you can press the button and take a picture facing out. In the justice system, we take selfies. We have structured the legal profession and the courts based on what’s best for us – the judges, the lawyers and the staff who work inside the justice system. Lawyers and paralegals sit in offices and expect the clients to come to us – during regular business hours. Courts are designed for lawyers, whose job it is to come to the courthouse and file papers or attend hearings or trials – during regular business hours. To be sure, we recognize that many people don’t have legal representation, but we still design self-help with the goal of helping litigants act more like lawyers. We make it easier for them to complete and file forms, we provide them with the information they need to understand court processes and procedures. We still insist that they come to the courthouse during regular business hours – often repeatedly. Our perspective is framed by the legal institutions we have in place.
What if we pressed the button on our cell phones and focused not on the profession and the courts, but on the people who need us – the people who need access to justice. We might view the work that needs to be done differently. Medical-legal partnerships are a great example of a paradigm shift – on the part of doctors. Doctors realized that despite the medicines they prescribed, some of their patients were not getting better. So they talked to their patients and learned that the real problems were not those that presented in the exam room, but larger social and economic issues – what the public health folks call the social determinants of health – that kept their patients from getting well. A child with asthma wasn’t getting better despite the inhaler the doctor prescribed because the apartment she lived in had mold and lacked heat in the winter or air conditioning in the summer. A victim of domestic violence kept returning to the clinic with escalating injuries because her husband threatened to keep her children, and she wouldn’t leave them with her abuser. Once they identified those larger social problems, the doctors realized that many of them could be solved with the help of a lawyer. The lawyers’ shift occurred after they realized that when the doctor handed patients a card directing them to the closest legal aid office, few patients would actually seek assistance. Instead, the lawyers needed to work in the clinic – they needed to go to where the clients were.
Here’s another example – the recently announced Legal Services Corporation, Microsoft and ProBonoNet initiative to build model online statewide portals. The portal would be a single online point of entry for anyone in the state who needs help. The portal would use triage technology to direct the person to the appropriate service provider and the most effective level of service under the circumstances. It will work on any device, any time and it will be open source. So, any state can take the technology and use it. The portal is thinking about access to justice from the perspective of a person who may know only that they have a problem and that they need help. It doesn’t assume the person knows the problem has a legal solution or which of any of a number of legal aid, government or social service offices or online resources in their community could help, or even which courthouse or administrative agency, if any, they will ultimately need to interact with.
A similar example from the courts is online case resolution. The University of Michigan Law School developed a platform that allows courts to resolve certain disputes online, including traffic tickets and parking tickets, because physically appearing in court for minor infractions remains a barrier for many people, including those who are working or have child care or transportation challenges. The system allows both parties – the defendant and the prosecutor to make their case online to a judge, who then issues a decision online. It can also allow people to set up payment plans and to monitor those plans. Once the paradigm shifts – from the notion that an adversarial proceeding must be in person – we can think about other types of disputes that might also be resolved online.
Believe it or not, paradigm shifts can even happen in government. As many of you know, my office, the Office for Access to Justice, was charged by former Attorney General Eric Holder with resolving the access to justice crisis in both the civil and criminal justice systems.
We were initially overwhelmed by the magnitude of the problem and the seemingly innumerable ways in which we could intervene. We obviously identified legal aid as an important way to increase access to justice for low-income and vulnerable populations but it wasn’t clear what our office could uniquely offer. Others, including many of you, were already working on Congress to increase LSC’s budget, the province of the legislative branch. But then, my colleague Karen Lash, shifted her perspective, and focusing on the executive branch realized that legal aid could help just about every federal anti-poverty program work better. That shift of focus also revealed how many agencies work to help low-income Americans. So we explained how legal aid could support the agencies’ efforts to increase access to housing, healthcare, employment, education, family stability and public safety. That subtle but profound shift launched the Legal Aid Interagency Roundtable – now, after President Obama signed a Presidential Memorandum in September 2015, the White House Legal Aid Interagency Roundtable (LAIR), staffed by my office, with Karen as its Executive Director. LAIR was built with a different paradigm: that federal programs run by executive branch agencies and targeting low-income and vulnerable populations work better – deliver better results – if legal aid is among the supportive services provided.
What might a paradigm shift mean for the work of Access to Justice Commissions? And why do I believe it’s so important now? Let me answer the latter question first. The reason we need to shift our perspective is because I believe we are at one of those unusual moments in American history when dramatic change can happen, when social and economic forces have shifted the terrain of American politics and placed fairness in our justice system and equal access to justice at the top of the political agenda.
The first of those forces is the growing recognition of income inequality. As measured by the census bureau, income inequality in the United States is greater today than it has been since 1928, and the divide is wider in the United States than in any other developed democracy in the world. To be sure, income inequality has long been with us. What’s different today is that everyone is talking about it. The impact of income inequality, including on the justice system, is part of the national conversation.
The second dynamic can be summarized in a word: protest. From Ferguson, Missouri, to Baltimore to Chicago to Los Angeles, thousands of people have marched to voice their concerns with the justice system. While the primary focus has been on law enforcement, there is growing recognition of the unlawful and harmful enforcement of fines and fees in certain jurisdictions. When people are incarcerated simply because they are too poor to pay fines and fees or their drivers licenses are suspended, they can lose their jobs, their homes and even their children, becoming trapped in a cycle of poverty that can be nearly impossible to escape. The extensive media coverage of these issues has drawn unprecedented attention to areas where our justice system is falling short of its responsibility to provide equal justice and due process. The third relevant strain is criminal justice reform. From bail to pre-trial diversion programs to sentencing reform to reentry, there has been unprecedented attention on and activity around the criminal justice system. Some of you may have heard about the Sentencing Reform Act of 2015, a bill currently making its way through Congress. The Senate bill has 24 co-sponsors – 17 Democrats and 17 Republicans. Bipartisanship can happen.
Finally, for the first time, the United Nations included access to justice as part of its Post-2015 Sustainable Development Goals. It’s Goal 16, which the United States strongly supported. The inclusion of access to justice, both as an enabler of development and as a critical development objective in its own right, recognizes that legal empowerment – giving all people the power to understand and use the law to secure justice and meet basic needs is essential to economic and social stability and security.
The issues of poverty and justice are on the front page of the papers, on NPR, local news broadcasts and John Oliver’s “Last Week Tonight”; the direct connection between poverty and justice is part of the national dialogue. It’s on the agenda in Congress. It is in the streets. The last time we had this much attention paid to poverty and justice in America was in the late 1960s and early 1970s when the Office of Economic Opportunity was created and the Legal Services Corporation was born.
As advocates for access to justice, we need to take advantage of the opportunity this moment in history affords. If we don’t act boldly now, we may lose the chance to do so for another 50 years. But the ways in which we think about access to justice are often incremental, and, as I noted at the outset, more like selfies. We need to push the button on our internal cell phone cameras and shift the paradigm. What does that mean? Well let’s look at the issues you’re going to be addressing here in Chicago: communications and messaging; self-representation; and funding for Civil Legal Aid. With respect to communications and messaging, it means connecting access to justice to these larger social issues. Access to Justice Commissions are uniquely qualified to take on that task. While we at Department of Justice – together with partners like the National Legal Aid & Defender Association, the American Bar Association, Voices for Civil Justice and others – are making the case at the national level, we need coordinated media, outreach and lobbying efforts to happen at the local and state level. Only people who know their communities can brainstorm opportunities to make the case for justice. That means thinking strategically about a coordinated media strategy and lobbying effort; it means writing op-ed pieces and talking to editorial boards and educating local and state government officials. It means speaking whenever possible – at rotary club and chamber of commerce meetings, at churches and community meetings – and emphasizing the ways in which access to justice will improve community health and safety. We need to connect the dots beyond our traditional allies to make the case that without a vibrant and thriving civil justice system, we cannot solve the problems of poverty and unrest. As my good friend, Wilhelm Joseph, the executive director of Maryland Legal Aid says, “If you do not invest in civil order, you raise the possibility of increased criminal disorder.”
That is precisely what we at the Office for Access to Justice do with LAIR. We educate federal agencies about the role legal aid can play in achieving their program goals – whether it’s preventing domestic violence or elder abuse, keeping families housed and children in school, giving people with a criminal record a second chance or securing for veterans the benefits they need and deserve. Many of you have seen our online toolkit which contains case studies linking legal aid to these issues and many more. And if you haven’t – here’s the website.
With respect to self-represented litigants, there is so much opportunity, and Katherine Alteneder and the Self-Represented Litigation Network are outstanding allies. Court self-help centers and navigators are critically important, and they need to be expanded, because there will always be disputes where people need to come to court. Once people get to court – and specifically to courtrooms – we need to help judges better understand how to work with self-represented litigants. As some of you may have heard, the Justice Department launched the first national reentry week at the end of April, which included well-deserved recognition of the importance of civil legal aid to reentry. One of the most successful reentry week activities was a simulated exercise where probation officers, prosecutors and others assumed the role of a person returning to their community after a period of incarceration. The participants came to understand the obstacles people reentering face and the frustrations they experience. What if we designed a similar simulation for judges? We could help them understand the court from the perspective of self-represented litigants. Paradigms might just shift.
And think how much more effective self-help centers could be if we reduced the number of people who use them because we’ve eliminated the need for some people to come to court. I’ve already talked about the Legal Services Corporation portal project. By directing people to the appropriate service and level of service, the portal should lessen the burden on court clerks to answer questions and it may help resolve disputes before they need to come to court. One of the two states that will pilot the portal could be yours – find out more about the project. In addition, Access to Justice Commissions could ask for a demonstration of the University of Michigan online dispute resolution platform – they will come to you in person or virtually – and think about whether it could be utilized for disputes in your community. Think about the areas of the court where self-represented litigants predominate – like debt collection, housing or family law. And then think about whether there might be a way to resolve some of those issues online. Or instead of turning just to your state’s law schools as potential partners, what about including engineering schools and design schools who may bring fresh perspectives to problems we experience as intractable?
Turning finally to revenue, let me share how a paradigm shift has already happened for two commissions. Last year at a chairs meeting breakout session, LAIR’s Karen Lash made the case for replicating LAIR at the state level, challenging attendees to focus their attention on state executive agencies – as we did at the federal level – and consider where legal aid currently could and should help further state agency goals. Because some state programs originate from federal funds, the federal LAIR primes the pump for states to similarly improve agency effectiveness by including legal aid.
The California and Massachusetts Commissions took the dare, and both opted for a trial run of a state version of LAIR with Victims of Crime Act (VOCA) Department of Justice administered funds, which had tripled in fiscal year 2015, and remained at that level for 2016. The California Commission, partnering with the Legal Aid Association of California and the state bar, reached out to their state VOCA administrator to explain how civil legal aid can help them better serve domestic violence, elder abuse and consumer fraud crime victims. They offered data and studies to prove the connection, and they developed case studies modeled on LAIR’s. It worked: the California VOCA administrator issued RFPs that can include legal aid applicants unlocking about $22 million – and issued another targeting $10 million specifically for a new victim legal assistance program. Kelli Evans, the California architect of the effort is here today and deserves our collective kudos!
The Massachusetts Commission is on the same track. Commissioner Sue Finegan and the revenue enhancement committee, catalyzed by the fact that the Massachusetts share of VOCA funds increased from nearly $10 million to more than $40 million in one year, began campaigning to raise awareness about how legal services help crime victims via public forums, letters of support from the domestic violence community and meetings with state decision-makers. In preparing for the not-yet-out RFPs, they’ve been brainstorming with legal aid, domestic violence and sexual assault advocates so that they’ll be ready to respond with an innovative, statewide and comprehensive proposal.
And in late breaking news, we just learned that in Washington State, the state agency administering its VOCA funds will be releasing a $4 million RFP for a regional response for crime victim civil legal services.
Your commissions can do the same. Reach out to your state VOCA administrators. Investigate other federal – and state – grant and policy initiatives that work better with legal assistance folded in. Merely shifting your perspective will uncover them. And for help doing just that, be sure to attend Karen Lash’s table talk: The Alphabet Soup of Federal Block Grants.
Access to Justice Commissions throughout the country, the Conference of Chief Justices, the Conference of State Court Administrators and we at the Department of Justice have embraced the goal of meaningful access to justice for all. Every person should have access to appropriate and effective services to address their critical legal needs. I know none of us wants that goal to be solely aspirational. It is a goal that can be – indeed, it must be – achieved. When everyone from President Obama to Pope Francis is talking about justice, this is truly our moment. Let’s all use this meeting to flip our cellphones, to change our perspective and shift the paradigm. When we do, we can think big – and be bold – and make access to justice for all a reality.