Congress Revives Push To Codify DOJ Access To Justice Unit

By Justin Wise | July 19, 2021, 4:22 PM EDT

A powerful, bipartisan group in Congress is reviving a proposal to permanently restore the U.S. Department of Justice's Office for Access To Justice, in a bid to codify the unit dedicated to legal representation for the poor that was shuttered by the Trump administration.

The Office for Access To Justice Establishment Act, introduced on Monday, marks the second time in a year that legislation has been put forth to reestablish the DOJ office, which was closed in 2018. Formed in 2010 by the Obama administration and officially put into operation five years later, the office partnered with agencies to coordinate policy initiatives on areas such as criminal indigent defense and civil legal aid.

"Every American, regardless of their socioeconomic background, deserves equal justice under the law," House Judiciary Committee Chairman Jerry Nadler, D-N.Y., who is introducing the House bill with Reps. Fred Upton, R-Mich., Mary Gay Scanlon, D-Pa., Brian Fitzpatrick, R-Pa., and Don Bacon, R-Neb., said in a statement. "Unfortunately, far too many do not have access to the legal help they need. That's why I am introducing legislation to establish the Office for Access to Justice, ensuring that those most in need have the same access to legal help as everyone else."

Sens. Chris Murphy, D-Conn., and John Cornyn, R-Texas, are set to introduce the bill in the Senate.

The bills come just months after President Joe Biden ordered the DOJ to devise a plan to expand its access-to-justice functions. Attorney General Merrick Garland said in a memo in May that the DOJ would "reinvigorate the Office for Access to Justice." The steps came as the COVID-19 pandemic has exacerbated the problems that many Americans face in receiving adequate legal support, according to advocates.

The DOJ did not immediately return a request for comment from Law360 on Monday. 

The House and Senate bills would formally establish the office within the DOJ, protecting it from an executive branch decision. It would require the attorney general to provide the personnel and funds necessary for it to operate.

Under the legislation, the DOJ office would serve as the primary department legal adviser on matters related to the Sixth Amendment, which sets forth rights for defendants in criminal prosecutions. It would also advise the attorney general on matters tied to legal representation for the poor and coordinate with other agencies on areas such as grant-making and funding decisions.

The director of the office would also serve as the executive director of the Legal Aid Interagency Roundtable, which was first formed in 2012 and convened different executive branch agencies to develop policy on issues like public safety and health care.

Unlike the legislation separately introduced by Nadler and Murphy during the last Congress, the new bills are co-sponsored by GOP lawmakers. It's still unclear, however, how broad the support is from Republicans, some of whom celebrated its closure in 2018.

Civil legal aid officials and former leaders in the DOJ's ATJ Office said that indigent defense lost a critical voice when the unit closed and that its absence has proved detrimental during the pandemic.

"The reality is that the federal government's response needs to be more holistic with respect to the legal needs of low-income and underrepresented people," Maha Jweied, the last acting director of the ATJ, previously told Law360.

Jweied has noted that while the Biden administration can move on its own to revive the office, "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."

Nearly 9 in 10 low-income Americans receive little to no legal help when they are presented with a legal problem, according to data from the Legal Services Corp., a group that serves as the largest source of funding for U.S. legal aid groups.

The group in May asked for more than $1 billion in federal appropriations from Congress for its 2022 budget, more than double its fiscal appropriations for the current fiscal year. LSC President Ronald Flagg, a former Sidley Austin LLP partner, told Law360 that the request was in part a response to the "aggravated justice gap" caused by COVID-19.

Legal aid providers, which are traditionally strapped for resources, have faced a surge in demand over the past year, as more Americans have faced legal troubles linked to housing and employment.

Proponents of the ATJ office see funding and coordinating a response at the national level as major components of the response to these problems. During its eight years in existence, the office sought to bolster the right to counsel in civil matters and issued recommendations discouraging state court fines and fees. It also got involved in court matters with broader policy implications.

"While legal assistance is a constitutional right in criminal cases, many low-income folks face real hurdles in acquiring legal aid in civil cases and other court proceedings," Upton said. "This needs to change."

--Additional reporting by Cara Bayles and Marco Poggio. Editing by Steven Edelstone.

Update: This story was updated to note the bill was officially introduced. 

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