Remarks as Prepared for Delivery
Good afternoon. It’s an honor to be here today, among so many leading scholars on the issue of access to justice. And it’s wonderful to see the student participation and enthusiasm.
Thank you, Professor Nora Freeman Engstrom, for that kind introduction. And thank you to Dean Martinez; President of the Law Review, Anais Carrell; Symposium Editor Amir Wright; and all the staff and students who worked to convene this important event.
It may seem like a basic question in a room like this. Especially after Professor Nora Freeman Engstrom’s comprehensive primer. But I am going to ask it - what is access to justice?
Very often, when I introduce myself to people and tell them that I lead DOJ’s Office for Access to Justice, the response is, “Interesting. And what is that?” The head of the Civil Rights Division doesn’t get that question. Neither does the Director of the FBI, or the Director of the Bureau of Prisons.
I would like to talk today about how to get to that place of common understanding, where everyone recognizes access to justice. What it means, and why it is central to the ideals our country stands for.
At its core, “access to justice” is the pursuit of a foundational and critical promise – that the protections and benefits of our laws are within reach for everyone. Regardless of wealth, status, race or identity – justice should belong to everyone.
But there are many definitions, approaches and theories on how to engage in this pursuit. What it is, what it should be and what we need to do to make access to justice real. In fact, many in this room have led the development of scholarship on this topic. And the sessions in this symposium will address various debates about what access to justice means and what steps are necessary to achieve it.
This pursuit of access can mean dismantling the barriers that keep people from entering the courthouse doors. Like working to eliminate unjust fees or fines that can prevent those lacking economic means from filing a case, or from gaining access to the right resolution if it costs too much. Or addressing lack of transportation or broadband in rural areas for people who live far from the courthouse steps.
Other times, the pursuit of access is not getting people to the courthouse, its ensuring people can navigate legal systems once they are inside the courthouse doors. Ensuring access to counsel. Bolstering support for public defense. Exploring other innovative methods to provide legal assistance. Providing language access, and simplifying court processes so that people can more easily receive the benefits and protections of our laws.
And yet, many times, the pursuit of access to justice requires much more than expanding access to the courthouse. It also requires us to engage in the transformational work necessary to reform the laws and legal systems themselves.
It means rooting out systemic inequities within our legal systems and pursuing evidence-based reform strategies.
It means developing new and innovative solutions.
Or it may mean working outside of legal systems. It can require engaging in community-based solutions, or developing preventative efforts that keep people out of court altogether.
Across all of these efforts, what is patently clear – is that the phrase itself – access to justice – highlights that work must be done to achieve the goal of justice for all.
Access is not presupposed.
The root of the access to justice mission is that it requires intention. And action.
That is the mission of our office. It is the mission for many of the leaders in this room. And maybe – hopefully – it will soon be the mission for many of the law students in this room.
As many of you know, last year, Attorney General Garland reestablished the Office for Access to Justice as a separate office within the U.S. Department of Justice, to ensure that we are making the promise of equal justice real for everyone.
He asked our office to lead a whole-of-government approach to expanding and modernizing the department’s access to justice function, and to work to close access to justice gaps in both criminal and civil legal systems. I’m proud to say that this broad mission of access to justice is among Attorney General Garland’s highest priorities.
Our Office works to break down barriers to legal systems while we also engage in the systemic work necessary to reform our legal systems.
This includes breaking down economic barriers.
It seems like a basic concept that justice should not look different for the wealthy than it does for low-income communities. The Supreme Court ruled in Bearden v. Georgia that our Constitution prohibits “punishing a person for his [or her] poverty.”
But often, fines or fees can be disguised as routine processing or administrative steps. Sometimes, these fees can make filing a case or filing for a protective order out of reach for those who cannot afford it. Other times, when these economic hurdles lead to incarceration they can create an unjust cycle of poverty and the deprivation of liberty. Our office is working to develop policies and initiatives that dismantle economic barriers to justice.
One way that our office pursues our mission is through the filing of statements of interest. Under 28 United States Code Section 517, our office can file a brief to “attend to the interests of the United States” in any case pending in any state or federal court.
Last summer, the Office for Access to Justice partnered with the Civil Rights Division to issue a statement of interest in a case against the Town of Brookside, Alabama. The facts in the case allege that Brookside increased its budget through the unconstitutional enforcement of municipal fines and fees and seizures of vehicles during traffic stops.
According to the plaintiffs, both fines and fees collection and vehicle seizures ballooned between 2018 and 2020. In 2018, police ordered 50 cars towed and impounded; by 2020, that number had risen to 789. In the same period, traffic citations rose from 382 to 3,024 per year, nearly an eight-fold increase. Overall, by 2020, revenue from fines, fees and forfeitures made up around 49% of Brookside’s annual revenue.
In that case, our statement of interest asserted that the Fourteenth Amendment’s Due Process Clause bars significant financial and institutional conflicts of interest, including in the enforcement of municipal code fines, fees and vehicle seizures.
Another way that our office works to pursue access to justice is by pursuing access to counsel, including by supporting legal services providers, mobilizing federal government lawyers to engage in pro bono work and promoting innovative approaches to providing legal help.
Legal help is all too often a luxury that most cannot afford. The Legal Services Corporation recently reported that low-income Americans do not receive any or enough legal help for 92% of their civil legal problems. These numbers are staggering.
This means that when people face losing their home through eviction or foreclosure, when they face devastating economic hardship and have to navigate the complexity of the bankruptcy process, when they risk losing family members and seek to pursue child custody or even when they may be in danger and are seeking a protective order, people often stand alone, without legal help.
One of the many ways we’re working to close this gap is by empowering federal government attorneys to engage in pro bono work. Last year, we moved the Federal Government Pro Bono Program into our office and expanded its resources and staff for the first time in over twenty years.
The Federal Government Pro Bono Program, led by Laura Klein, works government wide to find and vet opportunities for government lawyers to engage in pro bono work.
The program assists government lawyers to assess potential conflicts of interest, connects attorneys with legal services organizations or specific pro bono events and assists attorneys in cases they take on. Currently, over 50 federal agencies participate in the program, and it has a wide reach across the country.
In addition to regularly connecting government lawyers to pro bono work, the program can also recruit assistance for focused initiatives. As you likely recall, when pandemic eviction moratoria began to expire in 2021, Attorney General Garland issued a Call to Action to the legal community to assist Americans facing eviction and other housing crises, including through pro bono work. In response, the our Pro Bono Program launched the Call to Action Competition to encourage DOJ attorneys and legal staff to get involved. I’m proud to say DOJ attorneys accepted 69 housing cases and staffed numerous housing clinics over the course of the competition.
As we continue to grow this program, our office will help to create pathways for thousands of federal attorneys to volunteer to help fill the justice gap.
Access to justice also requires us to ensure that people can easily navigate systems to access the promises of government.
All too often, a form is too complex, a process too compounded, or a system requires difficult travel, or too many steps to obtain much needed relief. These hurdles can particularly compound barriers already faced by marginalized communities. Promoting simplification of process can reduce the need for lawyers to help in the first place.
Our office looked at this issue with the Legal Aid Interagency Roundtable last year.
The White House Legal Aid Interagency Roundtable is co-chaired by Attorney General Garland and White House Counsel’s Office. It is a collaboration of over 28 federal agencies which our Office directs, staffs and runs.
We were pleased that last year, Attorney General Garland named Allie Yang Green, in our office, as the Executive Director of the Roundtable.
The 2022 Roundtable efforts focused on how federal agencies can simplify forms, language, and processes to improve access to programs and benefits, and to make it easier to resolve issues. This can also help to reduce some of the burden on already under-resourced legal services providers.
In December, the Office for Access to Justice hosted the 2022 Legal Aid Interagency Roundtable Principals Convening at the White House. Attorney General Garland and White House Counsel’s Office co-chaired the event. The Second Gentleman, Douglas Emhoff, joined as a guest speaker to share his commitment to pro bono and legal assistance. And we also heard from Associate Attorney General Vanita Gupta, a long time access to justice leader.
Leaders spoke from the Department of Veterans Affairs, the Department of Homeland Security, the Department of Labor, the Social Security Administration, the Legal Services Corporation and many more. We were pleased to have high level officials present representing most of our 28 federal agency members of the Roundtable.
In that room, there was a joint commitment to simplification across federal government programs. And particularly inspiring was the acknowledgement that this work must be pursued through a people-centered lens.
Agency officials made commitments to regularly engage with legal services organizations and impacted communities to understand where the barriers lie in accessing federal government resources and to inform efforts to improve and simplify access.
We look forward to issuing the 2022 Roundtable report soon, that will summarize and uplift all of this work.
Access to justice means access to legal assistance and simplifying process, but it also means language access. People should not be excluded from the promises of our laws because of the language they speak.
According to recent data from the Census Bureau, nearly 68 million, or one in five people, spoke a language other than English at home in 2019. This number nearly tripled from just over 23 million in 1980, to 67.8 million in 2019.
Linguistically marginalized communities with limited proficiency in spoken English, including those who are deaf and hard of hearing, cannot be precluded from reporting a crime, understanding their rights or navigating a court process.
On May 20 of last year, Attorney General Garland announced the designation of Ana Paula Noguez Mercado, within the Office for Access to Justice, to serve as the first ever department-wide language access coordinator. Our office has since been working to grow a language access team. The Language Access Coordinator and language access work spans across all of the department’s priorities.
We officially re-launched the Justice Department’s Language Access Working Group, chaired by the Language Access Coordinator, with a vision to ensure that across all Justice Department programs, services and activities we mitigate barriers to access for the millions of individuals don’t speak English as their primary language.
As its first task, the working group is updating and modernizing our DOJ-wide language access policy, plan and procedures in response to Attorney General Garland’s 2022 Memorandum on Strengthening the Federal Government's Commitment to Language Access.
The language access coordinator and team are also working to implement DOJ language access commitments under the department’s Equity Action Plan in response to Executive Order 13985 on Advancing Racial Equity.
We are working on efforts to centralize and expand language access resources, improve awareness and access to language assistance resources and provide training and technical assistance to other offices within DOJ.
We’re also creating resources like a one-stop shop for department components to obtain access to qualified interpreting and translation, as well as an internal repository of commonly translated documents including glossaries of common legal terms.
We are also working on making our digital door accessible in languages other than English, and creating guidance on different topics including identifying documents and top languages for translation, as well as best practices for stakeholder engagement efforts to connect with multilingual communities.
While we are hard at work strengthening internal policies and practices, we are also learning and collaborating with other federal agencies on promising practices for language access
We envision that as our language access work continues to develop, we can serve as a national model, and a collaborator with our state and local partners, in the shared goal of language justice.
As I said previously, efforts to expand access to legal systems must go hand in hand with systemic reform of our legal systems themselves. So what does that look like?
It requires us to consistently look at our legal systems and government, and to continue to ask who is not seated at the table. Where are we failing to live up to our promises? Which communities are not accessing the promises of justice? And what innovative solutions or reforms will ensure access for all?
Last year, during Second Chance Month, our office led the drafting and publication of the Reentry Coordination Council’s Report, a collaboration with six other federal agencies to present recommendations to Congress on reducing barriers to successful reentry for individuals released from incarceration. We looked at barriers to accessing housing, food security, healthcare and other basic needs, and discussed potential reforms, like eliminating prohibitions that makes individuals convicted of drug possession offenses ineligible for federal benefits.
In conjunction with the report, we also worked with justice system impacted individuals to host a Reentry Simulation that allowed high level officials from all member agencies to better understand and discuss the complex hurdles and barriers faced by people impacted by the criminal legal system.
Also as I’ve traveled and met with those on the front lines, it’s been inspiring to see creative approaches and innovative efforts by people who practice access to justice through this lens.
Last year I was pleased to travel to Utah, where I met with the Timpanogos Legal Center. The organization is working to provide legal help for victims of domestic violence and stalking, who rarely have the ability to retain an attorney. Understanding that victims and survivors often have access to a free victim advocate through a domestic violence service provider or local law enforcement office, the program is training these advocates to help victims access services and seek civil protective orders and stalking injunctions.
I also learned about the Kayak Court, and met with Judge Clemens Landau who I know is here today and presenting next. When the unsheltered population largely resided by the Jordan River in Salt Lake City, judges, public defenders and court personnel jumped into kayaks to bring justice to the people. Handling citations, misdemeanors and quashing warrants with a laptop encased in a water-proof baggie.
I also recently met with the Colombian Vice-Minister of Justice, who discussed Colombia’s “Justice Houses.” These are multi-agency, one-stop-shops co-located with community family centers where community members can access prosecutors, public defenders, judges and mediators in one location. People can resolve issues like landlord-tenant disputes, family law, labor issues, domestic violence and human rights cases, in one location, nearby, within their community.
And on Monday, I’m looking forward to meeting with legal services organizations in Los Angeles, Bet Tzedek, Public Counsel and the Legal Aid Foundation of Los Angeles, where we’ll discuss many things, including work to pursue access to justice for street vendors through reforms that eliminate financial and other burdens.
Sometimes access means developing new processes. Or leaving the courthouse to take justice to the people. Or advocating to change the laws and systems themselves to ensure their promises and protections can be accessed by all communities.
Dr. Martin Luther King Jr. once said that “human progress is neither automatic nor inevitable.” Likewise, without the intentional pursuit of access, justice is not realized.
The pursuit of access to justice requires creativity and new ideas. It requires collaboration and partnerships. It often requires a vision of a justice that others may not yet see.
So let’s never stop asking ourselves what access to justice should be and what it should look like. Let’s always push ourselves to reimagine and dream bigger. To continue with an audacious belief that justice can and must be accessed by all.
I look forward to hearing the rest of the panel discussions today, and to work collectively with everyone here in promoting the continued pursuit of access to justice for all. And I’m looking forward to any questions. Thank you.