‘Justice for All’ Requires Access to Justice

A U.S. citizen and her mother, a refugee from El Salvador protected under Temporary Protected Status (TPS), attend a legal clinic in Somerville, Massachusetts, January 2018.

Starting from day one, the Biden-Harris administration launched an ambitious agenda to help vulnerable and underserved communities across the country with a volley of executive actions designed to course-correct and tackle the nation’s most urgent crises. These swift and bold steps will help communities that have far too often been harmed, marginalized, and overlooked by government policies. In the months ahead, the administration can bolster many of its priorities through strong federal leadership and the incorporation of access to justice strategies that aim to strengthen both the civil and criminal legal systems.

The Center for American Progress has previously called for reestablishing the Obama-era Office for Access to Justice (ATJ) within the U.S. Department of Justice (DOJ) as a key step to accomplishing its justice priorities. Before it was shuttered by the Trump administration, the ATJ helped coordinate efforts across the federal government aimed at improving results for low-income and other underserved communities within America’s legal systems. The new administration’s recent executive actions on racial justice, the COVID-19 pandemic response, and immigration, among other issues, underscore just how beneficial a central hub of this sort would be to integrate access to justice responses with solutions to drive long-lasting change.

Advancing racial equity

The administration’s recent executive order on racial equity charges the federal government with pursuing a “comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” Marginalized communities face significant barriers when it comes to navigating the U.S. legal system, which has dramatically limited opportunity and advancements in equity. Reforming the legal system, then, will be essential to achieving meaningful reforms for communities of color.

Research demonstrates that a strong civil legal aid ecosystem helps advance housing security, employment, family stability, consumer protection, and public safety by ensuring that all individuals understand and can exercise their rights, regardless of their ability to pay—but legal aid programs across the country are currently stretched far too thin. Furthermore, while it is axiomatic that true criminal justice reform requires meaningful input and guidance from public defenders and affected communities, these individuals’ voices and perspectives are too often absent from policy debates. When the ATJ was in force, the federal government led efforts to increase funding for civil legal aid and public defense programs, improve policies that affected those programs, and increase stakeholder involvement in reform efforts; reestablishing the office would therefore help strengthen implementation of this executive order.

For example, in the civil justice context, the executive order mandates that federal agencies conduct an equity assessment, allocate federal resources to advance fairness and opportunity, promote equitable delivery of government benefits and equitable opportunities within federal programs and services, engage with members of underserved communities, and establish an equitable data working group. The White House Legal Aid Interagency Roundtable (LAIR), an initiative formerly staffed by the ATJ, previously carried out similar tasks with the goal of better serving people who need civil legal assistance. Thanks to that precedent, a revitalized LAIR could quickly support federal agencies’ responses to the executive order by building in an essential civil justice perspective early in their processes to benefit individuals—especially individuals from underserved racial and ethnic communities—struggling with housing cases and other critical civil legal problems.

In the criminal justice context, the former ATJ was the only executive office with responsibility for lifting up the public defense function and increasing resources for public defense providers. The federal government should significantly expand this work, consistent with the executive order, which would also be in line with President Joe Biden’s oft-repeated goal of increasing support for public defenders. Incorporating public defenders’ expertise is vital to crafting policy change that will directly benefit the individuals who are most often subject to prejudices in the law—namely, Black and brown communities.

Pandemic response

The executive order on the federal pandemic response and recovery established a COVID-19 Health Equity Task Force headed by the U.S. Department of Health and Human Services (HHS) to provide recommendations for mitigating the health inequities caused or exacerbated by the pandemic and preventing these inequities in the future.

Previous work undertaken during the Obama-Biden administration demonstrates how incorporating access to justice initiatives could bolster the implementation of this executive order. The ATJ and LAIR worked across government agencies, including HHS and the U.S. Department of Veterans Affairs (VA), to spotlight the connection between health outcomes and civil legal need. In addition to this public education component, the office directly helped advance federal policy to better support medical-legal partnerships (MLPs). These partnerships are a type of service delivery model that allows people to receive legal help while accessing medical services. Renewed federal leadership on access to justice could support this critically important effort by promoting best practices for embedding MLPs within HHS- and VA-supported health centers in underserved communities. Importantly, research shows that legal help can improve access to health care, reduce medical debt, and improve health outcomes, while also reducing overall medical costs. Furthermore, federal guidance could support MLPs’ ability to address legal problems arising from the pandemic that affect public health, such as evictions and foreclosures, that have fallen most heavily on low-income individuals and communities of color.

Immigration

The Biden administration’s executive order on immigration and integration and inclusion efforts directs the secretary of state, attorney general, and secretary of homeland security to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers.” Federal action to improve access to justice would be of particular assistance to this effort as it relates to increasing access to counsel in immigration proceedings, which studies show improves outcomes for individuals as well as immigration court efficiency.

Previously, for example, the ATJ helped launch the justice AmeriCorps Legal Services for Unaccompanied Children Program and supported HHS and DOJ efforts to provide know-your-rights trainings and other resources to individuals in immigration court proceedings. The ATJ also joined interagency efforts to combat notario fraud, which is when individuals who are unauthorized to provide legal representation in immigration proceedings prey on individuals in need of legal assistance. The office also helped advance language access for individuals with limited English proficiency in immigration and other administrative hearings and proceedings. Reinforcing these practical, on-the-ground efforts is necessary to help immigrant families navigate the complex immigration court system and ensure their voices are heard.

Conclusion

In his inaugural address, President Biden pledged, “The dream of justice for all will be deferred no longer.” His recent executive actions speak to both the new administration’s dedication to this goal and the seriousness of the challenge ahead. While not an exhaustive accounting of all the ways that federally led access to justice work could help accomplish the Biden-Harris agenda, the above examples demonstrate just some of the relevant strategies that could help advance the administration’s goals on a range of issues. Breathing new life into federal leadership on access to justice issues, including by reestablishing the ATJ office, will be vital in the months and years ahead to improve the lives of people across the country.

Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress. Maha Jweied is a senior fellow at the Center. Karen A. Lash is a senior fellow at the Center.