Office For A2J Could Be Revived Under Biden

By Cara Bayles | January 24, 2021, 8:02 PM EST

Advocates are hopeful that the Office for Access to Justice — an initiative created by the Obama Justice Department and shuttered during the Trump administration — could get a second shot under President Joe Biden. (AP Photo/Evan Vucci)


For eight years, the federal Office For Access to Justice sought to get everyone a fair shake in the court system. It partnered with other executive departments to coordinate legal services. It discouraged state judiciaries from imposing hefty fines and fees. And it supported impact litigation that sought to improve access to counsel.

But during the second year of the Trump administration, then-Attorney General Jeff Sessions shuttered the office, moving some of its duties within another U.S. Department of Justice wing, the Office of Legal Policy.

Now, lawmakers, activists, and some of the office's former employees are hoping to see it revived under the administration of President Joe Biden, either through legislation, or through the less permanent but less difficult route of executive action.

"There have been a lot of efforts to put this on the transition team's radar, so we're hopeful," said Maha Jweied, who was serving as the office's acting director when it closed.

"The office was initially started at the discretion of the Obama-Biden administration, so certainly the Biden-Harris administration has the ability to support its reestablishment in a similar manner," she said.

The office got its start in 2010 as an initiative created by then-Attorney General Eric Holder to foster reform and legal aid. The Obama administration formally created the Office For Access to Justice five years later.

During its eight years of existence, the office's small staff sought to bolster the right to counsel for both indigent criminal defendants and parties in civil actions like housing and family law proceedings.

The office issued recommendations discouraging state court fines and fees, which are said to criminalize poverty by disproportionately affecting defendants who struggle to pay. It represented the U.S. government in international access to justice discussions. The office also developed the White House Legal Aid Interagency Roundtable, or LAIR, a group of representatives from 22 different executive branch agencies that developed policies focused on criminal indigent defense and civil legal aid.

Sometimes those partnerships unveiled hidden legal remedies, according to Karen Lash, who served as the office's deputy director and helmed LAIR.

For example, the Office for Access to Justice worked with the Department of Health and Human Services to offer legal aid at community health centers. Those medical-legal partnerships might help, for example, a young child who keeps going to the emergency room for asthma attacks triggered by subpar housing conditions like mold or rodents, Lash said.

"The doctors can keep giving him medical attention to stabilize him, but if he keeps going back to that apartment, we're not solving his health problems," she said. "But if you bring in a legal aid lawyer to enforce the housing codes and habitability standards, and get rid of the mold, now we've solved the health problem."

The Office for Access to Justice also intervened in the courthouse, writing statements of interest in cases that had policy implications, especially class action litigation over the lack of resources for public defenders and other Sixth Amendment right-to-counsel suits.

These efforts represented a shift within the DOJ, according to David Udell, executive director of the National Center for Access to Justice at the Fordham University School of Law. The department's role has traditionally been upholding the rule of law, not helping people understand and assert their rights in court, he said. Udell called the expanded mission "a tribute to American democracy."

"The Office for Access to Justice was a national convenor of justice reformers," he said. "It brought together researchers, advocates and government agency officials, and built momentum for improving the function of the government in assuring access to justice."

But that momentum stalled after President Donald Trump took office in 2017. The new administration didn't select a replacement for Lash, who was a political appointee, and the office's already small civilian staff shrank amid an executive branch hiring freeze.

Still, it held LAIR meetings, continued its right to counsel work, and hosted an event with then-Deputy Attorney General Rod Rosenstein during the first year of the Trump administration, according to Jweied.

"The work of the office is truly bipartisan, as is evidenced by the ability of the office to continue to carry on its functions for that one year," she said.

In April 2017, the Office of Budget Management adopted a credo to essentially shrink the government, saying "Washington often crafts costly solutions in search of a problem." Months later, Sessions decided to close the Office for Access to Justice. By the spring of 2018, its last employee had left, and it was erased from the Department of Justice's organizational chart.

The office's closure has been felt in a variety of legal circles. LAIR is still meeting, but less frequently than it's supposed to. Jweied says that in the past two years, there's been no U.S. government representation in multilateral international access to justice talks. Any U.S. representation in those conversations comes from nongovernmental organizations, she said.

Lash said that without the office, public defenders don't have much of a voice in Justice Department policymaking. In fact, in October, a federal judge criticized the Presidential Commission on Law Enforcement and the Administration of Justice for being comprised solely of former law enforcement officials, and not including a public defense perspective.

"It's the Department of Justice, not the Department of Prosecutors," Lash said.

And with the coronavirus pandemic upending every aspect of American life this year, the loss of the office has been felt even more acutely, according to Udell. He said that just as a national coordinated healthcare response to COVID-19 is essential, so is a national effort to "strengthen the quality of justice in our courts across the country during this time of COVID."

"The justice consequences of the pandemic are deeply concerning, with millions of Americans facing job loss, the loss of their homes, huge debt and the real risk — often for the first time — of being poor," he said. "The Office for Access to Justice was among the very few institutions that was charged with focusing on supporting the infrastructure of justice, which is especially important in this time of COVID."

Now, lawmakers are seeking to revive that mission.

Last month, weeks before the congressional session ended, House Judiciary Chair Jerrold Nadler, D-N.Y., and Rep. Mary Gay Scanlon, D-Pa., and Sen. Chris Murphy, D-Conn., sponsored bicameral legislation to reestablish the Office for Access to Justice.

"It's clear that our justice system is too often weighted against those without adequate resources to navigate it, which is why we must improve legal resources for all Americans — regardless of their socioeconomic background," Murphy said in a statement.

The legislation has been backed by a group of 44 organizations representing a range of interests — from the American Civil Liberties Union to the Christian Legal Society — all of whom signed a letter to Judiciary Committee leaders saying the office's "proven track record advocating for the constitutional right to counsel and civil legal help for low-income communities demonstrates its need and effectiveness."

The bills, which will likely be reintroduced this session, would protect the office by enshrining it by statute, Jweied said. That would make it more difficult for a future administration to shutter the office again.

"The thrust of the bill mirrors very much what the office used to do, but it would be codified," she said. "The real push behind the legislative initiative is to protect the functions of the office from future openings and closings, sort of like a ping-pong situation."

While the bills have some bipartisan support, it's unclear whether they could pass should they be reintroduced this session.

Some Republicans celebrated the office's closure in 2018. In an opinion piece for the Hill, U.S. Sen. James Lankford, R-Okla., and then-U.S. Rep. Bob Goodlatte of Virginia said when corporate defendants' signed settlements with the federal government, the money sometimes benefited liberal causes, and that "with the help of A2J, the Justice Department became a funding arm for like-minded ideology, entirely without congressional approval."

But supporters of the office need not wait for the slow machinations of Congress to see it reinstated. Lash pointed out that the Biden administration could reopen the office without legislation.

"There's a regulation that sets out the function for the Office of Access to Justice that still exists. There's a presidential memorandum that established the Legal Aid Interagency Roundtable as a White House initiative that also remains in effect. It was not rescinded during the Trump administration, so the authority is there," she said.

A group of congressional Democrats, including Judiciary Committee members Pramila Jayapal and Jamie Raskin, wrote a letter to Biden last month urging him to extend the federal eviction moratorium, fund legal aid programs and "reestablish and elevate" the Office for Access to Justice.

And while the Biden transition team did not respond to comment requests, the new administration may well support reviving the office.

As vice president during the Obama administration, Biden's team worked with the Office for Access to Justice on programs supporting the victims of domestic violence and on foreclosure mediation and legal aid services, especially for veterans.

The president's campaign platform included commitments to invest in public defenders' offices and to stop the criminalization of poverty by ending cash bail and the practice of jailing people unable to pay court fees — all initiatives spearheaded by the Office for Access to Justice under the Obama-Biden administration.

There are ways a new Office for Access to Justice could expand on its last iteration, as well.

Udell said he'd like to see it act as a watchdog, to ensure that the use of artificial intelligence and other technologies by the courts improves access but doesn't exacerbate racial biases or injustices. Lash said she'd like to see LAIR, which focused on civil legal aid interventions, also include input from public defenders. And Jweied said she'd like to see the office have a larger staff, that could include not just attorneys, but researchers and analysts.

Jweied and Lash, both former employees of the Office for Access to Justice, have been working on efforts to get the office up and running again next year.

When asked if they'd be willing to work there again, they said they wouldn't turn down the opportunity, but Lash added, "What's most important is the Office for Access to Justice get a 2.0 version."

"Would I be honored and thrilled to be among those to go back in and turn on the A2J lights again? You bet," she said. "But that's really secondary."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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