On October 19, 2016, Fordham Law School marked the arrival of the National Center for Access to Justice (NCAJ) and the launch of the school’s new Access to Justice Initiative, with a pathbreaking public event, Where the Civil and Criminal Justice Systems Meet: Next Steps in the Access to Justice Revolution. Here is the videotape:
The Dean, Matthew Diller, delivered opening remarks, New York State’s former Chief Judge, Jonathan Lippman, gave a keynote address, and NCAJ’s Executive Director, David Udell, moderated the discussion with panelists Lippman, three currently sitting chief justices — Nathan Hecht (TX), Jorge Labarga (FL), Stuart Rabner (NJ) — and National Legal Aid & Defender Association (NLADA) President, Jo-Ann Wallace.
In his opening remarks, Dean Diller explained that the school’s new Access to Justice Initiative will draw on and help to advance the activities of NCAJ, as well as the related and pertinent activities of the school’s other centers and institutes, and of its faculty members, clinics, and student journals. In co-chairing the new initiative, Lippman, Diller and Udell have already authored a National Law Journal op ed, Law Schools Must Focus on Access to Justice: Fordham, Stanford and other institutions are working to lessen the legal system’s limitations, explaining that law schools are increasingly educating students about justice system problems and about opportunities to help solve the problems.
Judge Lippman then introduced the theme of the evening: the value in the judiciary taking a leadership role in extending the “access to justice revolution” beyond its initial focus on the civil justice system to encompass a reform agenda at the intersection of the civil and criminal justice systems and in the criminal justice system. He explained that most litigants perceive there to be a single justice system and that the judiciary can perform a valuable role in advancing a reform agenda embracing both the civil and criminal justice systems. He noted that despite the U.S. Supreme Court’s ruling in Gideon v. Wainwright, the decades since Gideon have shown that neither the promise of the right to counsel in the criminal justice system nor the hope of a matching right to counsel in the civil justice system (to the degree one can be secured) will, without more, be able to secure equal justice, stating:
“We know that what we need today is an access to justice revolution that fosters leadership, innovation, and partnerships in the cause of equal justice so that justice in criminal and civil matters is not determined by the amount of money in your pocket”
The panelists expanded on this theme, discussing: i) how innovative models in the civil access to justice movement can be applied to challenges in the criminal justice system and at the intersection of the civil and criminal justice systems (for example, extending coverage of access to justice commissions to the criminal justice system, increasing pro bono participation in in criminal justice reform and in providing criminal defense services, promoting transparency of courts through unified forms, technology, and new roles for judges and clerks); ii) how collateral consequences of adverse civil judgments draw people into the criminal justice system; iii) how the access to justice framework and vision can advance the reform agenda for court fees, fines and drivers license suspensions that are used to extract money from the poor for minor “civil code violations”; iv) how redefining crimes as civil violations has millions of people facing financial penalties in municipal courts but without the right to counsel previously available in criminal prosecutions; and v) how the judiciary can take steps to provide leadership that responds to the calls for racial justice and greater fairness in our justice institutions.
The discussion repeatedly returned to The Ferguson Report, and the US Department of Justice’s finding that the Ferguson police and justice system were using court fees and fines not to assure justice, but rather to carry out a quasi-business enterprise dedicated exclusively to financing the justice system by extracting as much money as possible from the town’s poorest residents. Udell noted that the modern practice is rooted in the post-emancipation era when, as Donald A. Blackmon has documented in his book, Slavery by Another Name, newly freed slaves were routinely jailed on fine-generating charges such as vagrancy and then sold as indentured servants to companies eager to purchase labor at bargain prices by paying off the fines.
The panelists were united in voicing concern over the modern fees and fines practices, including the reliance on drivers license suspensions since people who must work to survive are likely to drive with suspended licenses leading inevitably to time in prison. Large amounts of money are at issue for states, making policy reform a challenge. Some states are using the funding to finance their justice systems. In Florida, court fees and fines generate annual revenue of $1billion that goes directly into the state’s general fund, Chief Justice Labarga said. Chief Justice Labarga, Chief Justice Hecht and NLADA President Wallace are part of a reform initiative coordinated by the National Center for State Courts that is developing best practices for state justice systems on the collection of court fees and fines.
In New Jersey, the access to justice reform agenda includes a focus on improving bail policies, explained Chief Justice Rabner. A 33-member panel found the state’s jails are holding a large number of people too poor to make bail. As a result, New Jersey will transition in the next 10 weeks to a system that focuses on an inmate’s risk of flight. Chief Justice Rabner said that the new policy is expected to reduce the state’s population of inmates, including the number of inmates of color.
The panelists identified constructive recommendations for addressing public trust in the courts:
- Chief Justice Hecht noted the importance of courts obtaining public input on “what the problems are,” and described an upcoming gathering in Texas that will bring together a broad swath of stakeholders to identify issues and discuss solutions.
- Chief Justice Labarga highlighted the importance of diversity on the bench, remarking on the wisdom in the saying, “not only must justice be done, it must be seen to be done.”
- Chief Justice Rabner spoke of steps that can be taken when fear keeps people away from the justice system, explaining that New Jersey had succeeded in reducing defaults in debt collection cases by establishing a mandatory mediation requirement in every case.
- Judge Lippman observed that the judiciary is “perfectly situated” to convene parties to address important and sensitive concerns, including issues surrounding alienation of minority communities from courts.
- NLADA President Wallace emphasized the need “to bring consumers totally into the system that is meant for them,” and the need for the judiciary to gather data on race that can help assure that everyone will be treated the same. She encouraged the judiciary to publish a formal agenda for access to justice reform in the criminal justice system that would be analogous to “Resolution 5,” adopted by chief justices and chief court administrators, which in 2015 set an influential agenda for achieving 100% access to justice in the civil justice system.
In considering the further implications of the access to justice revolution in both the civil and criminal justice systems, Judge Lippman explained that in the many jurisdictions in which the judicial branch receives revenues from fines, the judiciary faces a profoundly problematic situation: “You can’t open access to justice with one hand and close it with the other.”
Books, articles, and organizations mentioned in this panel discussion, are listed below:
- Videotape of the panel, “Where the Civil and Criminal Justice Systems Meet: Next Steps in the Access to Justice Revolution”, Access to Justice Initiative, Fordham Law School (Oct. 19, 2015).
- Law Schools Must Focus on Access to Justice, Jonathan Lippman, Matthew Diller and David Udell, Co-chairs of the Access to Justice Initiative at Fordham Law School, The National Law Journal (original text in NCAJ blog, https://ncforaj.org/2016/09/26/access-to-justice-is-at-the-center-of-legal-education).
- Investigation of the Ferguson Police Department (“The Ferguson Report”), United States Department of Justice Civil Rights Division (March 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf.
- Reaffirming the Commitment to Equal Justice for All, Resolution 5, Conference of Chief Judges, Conference of State Court Administrators (August 13, 2015), https://www.ncsc.org/~/media/Microsites/Files/access/5%20Meaningful%20Access%20to%20Justice%20for%20All_final.ashx.
- Slavery by Another Name, The Re-Enslavement of Black Americans from the Civil War to World War II, by Douglas A. Blackmon (Random House, March 25, 2008).
- Race, Class and Civil Access to Justice, by Sara Sternberg-Greene, Duke Law School, Iowa Law Review (2016), http://scholarship.law.duke.edu/faculty_scholarship/3450/.
- The Justice Index, National Center for Access to Justice, www.justiceindex.org.
- Resolution 5, Reaffirming the Commitment to Meaningful Access to Justice for All, Conference of Chief Justices & Conference of State Court Addministrators (2015), http://www.ncsc.org/~/media/microsites/files/access/5%20meaningful%20access%20to%20justice%20for%20all_final.ashx.
Organizations and links:
- National Center for Access to Justice, www.ncforaj.org.
- Self Represented Litigation Network (SRLN), www.srln.org.
- National Legal Aid & Defender Association, www.nlada.org.
- National Center for State Courts, www.ncsc.org.
- Voices for Civil Justice, www.voicesforciviljustice.org.
- Brennan Center for Justice, www.brennancenter.org.
- Legal Services Corporation, www.lsc.gov.
Access to Justice Initiative at Fordham Law School:
- AtJ Initiative, http://www.fordham.edu/info/26060/access_to_justice_initiative.
- Fordham Law School, http://www.fordham.edu/info/20346/school_of_law.