ATJ Commissions Planning Survey Shows Energy, Common Directions and Interest in Multi-State Networking

After the Access to Justice Commissions meeting this spring in Austin, the Commissions were invited to respond to a brief survey as to their interest in following up on the areas for possible initiatives that had been the focus of the meeting.

I am very pleased that I can now share the results of that survey, and that they show a broad level of interest in moving forward.   The results also give a strong sense that the Commissions are moving in a common and broad general direction.  This chart tells much of the story.  The possible areas of activity are shown in order of definitively planned activity, with 25 states providing significant data.


Firstly, there is a significant level of interest in having such areas of activity.  In fact, the average responding state has 3.9 areas of project or definite planning, and 3.9 under consideration.  That’s a total of 7.8, a major change from the relatively narrow focus of a few years back.

Secondly, with one exception, the totals (not shown on the graph) are very close together.  For each of the areas, between 22 and 25 states are either definitely planning or are considering them.  The exception is the one dealing with community legal system chasm, which has only 2 definitely planning, but 12 considering, for a total of 14.  From this pattern, we can conclude that there is general agreement about the general possible focuses of the movement.  (It should be admitted, however, there might be other options not offered that are in fact receiving significant interest.)

Thirdly, it is noted that while funding are as usual the most two common areas that is definitely planned, it is also the fact that one communication strategy and one court system improvement strategy find themselves in the top four, and not so far behind, confirming that Commissions now have a broader view of their role as innovators as well as funders.

Please note that the names of activities used here are very abbreviated.  The full survey questions, and slightly fuller data presentation are shown in the Report here.

The second series of questions gauged interest in networking among Commissions to support each others’ activities in these areas.  Here the average state was definitely interested in 1.7 areas (out of a lower maximum) and possibly in 3.4, for a total of 5.1.  These are lower numbers than plans for in-state activity, and significantly more tentative.  Here is the chart, sorted this time by the total, given that that seems to be a more useful number here both for analysis and planning purposes.

Network-planThere is, I think, a greater spread in the totals, a different ordering, and, of course, the much greater occurrence of networking between states being considered, rather than definitely desired.  With the exception of those definitely wanting such networking on a total funding plan, there is less interest relatively in funding issues.

Of course, many strategic and planning considerations will go into any decisions about priorities and next steps.  But Public Welfare Foundation funded support for the meeting planning and this follow-up are to be congratulated on the much more focused meeting and the gathering this data, which gives a much more comprehensive view of what the state-level Commissions believe they want.


Posted in Access to Justice Boards, Chasm with Communities, Communications Strategy, Court Fees and Costs, Funding, Legal Aid, Metrics, Planning, Self-Help Services, Simplification, Technology | Leave a comment

An Urgent Call for Action on Moving Potential Clemency Cases Forward

This blog urges the legal profession, both institutionally and individually, to step up now and play its role to help free thousands of nonviolent drug offenders given draconian federal sentences, and now potentially eligible for Presidential clemency.  First the background.

As recently reported by the New York Times under the headline Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders, the President is taking unprecedented steps to reverse at least some of these injustices.  As you will recall, back in April 2014, DOJ announced a priority process for certain non-violent drug cases, and the profession formed a group to rise to te challenge.

In addition, the newly-formed Clemency Project 2014 (a non-government affiliated organization composed of the American Bar Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, the American Civil Liberties Union, and Families Against Mandatory Minimums, as well as individuals active within those organizations and other lawyers wishing to participate in this volunteer effort) is helping to quickly and effectively identify appropriate candidates for this initiative. Inmates who appear to meet the six criteria will be offered the assistance of an experienced pro bono attorney through Clemency Project 2014 in preparing his or her application for clemency.

As of now, according to the Times,

The consortium, called Clemency Project 2014, now has more than 50 law firms, more than 20 law schools and more than 1,500 lawyers participating. But the process is burdensome as the volunteer lawyers try to dig out documents from more than a decade ago to satisfy the criteria. So far, they have screened out 13,000 inmates who did not meet the guidelines and sent just over 50 applications to the Justice Department. (I understand this number is now 15,000)

Obviously, the project is doing all it can to move this huge number of cases.  Indeed, and this is cause for great celebration, the project has recruited more than any prior single pro bono project ever — over 1,500 attorneys.  A touchstone for the future of pro bono in moments of opportunity and crisis.

But while I am full of praise and admiration for the individual 1,500, and for the participating organizations in the Project, I am a bit worried about whether the profession as a whole is doing enough.

Deborah Leff, the department’s pardon attorney, has likewise pressed lawyers representing candidates for clemency to hurry up and send more cases her way. “If there is one message I want you to take away today, it’s this: Sooner is better,” she told lawyers in a video seminar obtained by USA Today. “Delaying is not helpful.”

Moreover, in the  Times, we hear of the 46 commutations, but:

[These] reflect just a small fraction of the more than 6,600 petitions submitted to the Justice Department since the administration announced its initiative last year. Some lawyers representing prisoners have complained that the review process has been overwhelmed. The administration has asked Congress for more money for lawyers, and said it was committed to issuing more commutations over the next 18 months.

Cynthia W. Roseberry, the project manager of Clemency Project 2014, a coalition of lawyers, law firms and law schools formed to answer the Justice Department’s call, said that she was heartened by Mr. Obama’s action, but that the government and the consortium “have quite a bit of work ahead.”

Indeed. Given the time DOJ inevitably takes to process cases, and the time it will take a president who has other responsibilities to make decisions, as a practical matter the is somewhere between 7 and 12 months to get all these cases to DOJ (perhaps less than 12).  We do get a new president in nineteen months, so who knows what, if anything, will happen then.  And this is a signature project for this administration.

The good news is that the project obtained the agreement of the Administrative Office of the Courts and the Bureau of Prisons to establish a process by which it will provide the pre-sentence report once the inmate has signed the consent.  A court order is no longer required, although the judge is given a period of time to object prior to the release of the report.  This is reasonable because of the possibility of inclusion of information about incrimination of others.  This means that the process of data gathering has now been hugely streamlined, since often, but not always, the report also includes the needed information on any state convictions.  (When it does not, getting the old usually non-digital state records is a major source of delay.)

There is also good news (good for the inmates, but meaning more work for the Project) that the recent 46 commutations have signaled that the President will be at least somewhat flexible on some of the eligibility criteria.  One person who had served less than ten years was included, as was another with a firearms record which might otherwise have been deemed “violent.”

So, right now it is simple.  The legal community must get the tens of thousands of cases reviewed and the eligible ones sent to DOJ.  If we do not do so, after having promised to do so, the profession will in a certain sense be responsible for those still sitting in Federal prison who would otherwise be free.

So what is to be done?

Firstly, every attorney who possibly can should volunteer.  I am told that it may take only an hour to do the initial screening, and that for many of the cases the record is very clear that the inmate falls well within the program, in that under current law the sentence would simply not have been imposed.  So the process of writing up the petition is easy and short.

Moreover, there is back-up assistance for all attorneys who volunteer, and much time can be saved by those who have access to the services of paralegals.

The institutional question is more difficult.  I suspect that the large legal professional organizations can and need to do more to affirmatively recruit the huge numbers that will be needed.  I understand that the Criminal Justice Division of the ABA has been a stalwart supporter, but I am not sure that the larger organization has yet done as much as it might beyond exhortation.  We all know that recruiting pro bono volunteers needs more than urging, it requires a structure of one-on-one follow up before people can be expected to respond, and this should be a high priority for an organization-wide initiative, and an organization with significant capacity in this area.

More is at stake than maybe 15,000 lives.  A public failure will impact the credibility of the pro bono movement as a whole.  What should be a triumph of the profession would become instead a collective fail and shame.  As a general matter, some resist attempts to increase resources for access to justice with the claim that the bar should do more though pro bono.  The answer, basically, is that we are doing all that we can.  How will that claim look if the profession can not rise to this challenge and this commitment.  Our credibility to urge steps towards access to justice will surely be weakened.  (Something that state ATJ Commissions might think about when they consider if they can play a recruiting role.)

The profession and the organizations have put themselves on the line, which pro bono groups all too rarely do.  For this, they are to be lauded.  But that does not mean that they should not be held accountable.  Similarly, the legal profession as a whole has put itself on the line.  If we fail, the argument that lawyers inefficiencies are making us irrelevant will be hard to refute.

A couple of other thoughts:  I hope that the project has a good system for tracking whether the assigned attorneys are in fact moving on their cases, an internal schedule of targets so it knows when there is a crisis, and a plan for getting the additional resources it may need

I very much hope that follow up blogs will have good news to report on process, numbers and outcomes.  I very much hope that the final report, in late Jan 2017, will be that every case was appropriately and expeditiously considered, and that thousands of lives have been saved.

p.s.   Here is an article by National Association of Criminal Defense Lawyers President Norman Reimer, that might be useful in spreading the word.  Lets get to it.




Posted in Criminal Law, Defender Programs, Dept. of Justice, Legal Ethics, Reentry, Technology, White House | Leave a comment

High Lifetime Chance of Being Poor Suggests a New Legal Aid/ATJ Funding Argument

For decades we have been struggling with the fact that we think that many, perhaps most, people are resultant to fund legal aid, and particularly means-tested community-based legal aid because they think that it will never help them. (Incidentally, every article on how few people are helped by legal aid probably increases that perception, and so may  be courter-productive.)

A new study of the chances of being in poverty over the long term may upend our strategies for dealing with this.  As reported in the Washington Post’s Wonkblog, a study going back to 1968 shows that in fact:

By the time they’re 60 years old, [University of Washington Sociologist Mark] Rank has found, nearly four in five people experience some kind of economic hardship: They’ve gone through a spell of unemployment, or spent time relying on a government program for the poor like food stamps, or lived at least one year in poverty or very close to it.

So, by age 60, 45% have received some form of public assistance, 67% have experienced a period of extended unemployment, and 54% lived near or below the poverty line.

Indeed by age 60, 62% of people will have been in the bottom 20% and 42% will have been in the bottom 10% of the income distribution for at least a year.

Here is a graph showing the increasing numbers as one ages (distributed under Common Commons License, © 2015 Rank, Hirschl).  (The full two-author study that gives this chart is here.)poverty-1 year by age

Legal Aid, even means tested community-based Legal Aid, is a majority-serving program, and we have to start thinking about, and talking about it as such.

So, we obviously need this research to be tweaked to show the percentage who have been community-based legal aid eligible at some point in their lives.

Till recently, the communications strategy — wise and fair — has been to combine means-tested community-based legal aid and non-means-tested court-based (and some other) and make the argument that legal aid as a whole is available to all.

These numbers make possible a far more appealing argument — that parts of the legal aid service system are available to all, and that almost two thirds of people are at some point in their lives eligible for the type of services targeted for those most in need.  (Actually, given that senior legal aid is not means-tested, there is an even broader argument that 100% are eligible at some point in their lives, but I think the non-senior argument feels more honest and more credible.)  So, you can imagine a message/ad like — Most Americans are eligible for legal aid at some point in our lives — and that is a really good thing because the program ……  Indeed, in talking to people about legal aid, we might ask them to think back to when their income was low, and the challenges they faced.

So, lets get the research tweaked, and start using it.  Any ideas on how to make the research even better, or how to tweak the message?

Posted in Budget Issues, Communications Strategy, Legal Aid, Political Support, Poverty | 7 Comments

Research Suggests “In Court, Your Face Could Determine Your Fate”

NPR picks up on recent research about the relationship between facial appearance and sentencing. (Full study here.)

Individuals who are deemed to have untrustworthy faces are significantly more likely to be on death row compared with other people convicted of murder, according to a study published Wednesday in Psychological Science. Inmates thought to have trustworthy faces, however, have a higher chance of receiving the more lenient punishment of life in prison.

“Facial trustworthiness is a significant predictor of the sentence people receive,” says John Paul Wilson, who led the study and is a social psychologist at the University of Toronto.

They got lots of mugshots of those convicted of Murder in Florida, and got large numbers of people to rate those photographed as “trustworthy” or “untrustworthy.”  Sue enough, those judged to have trustworthy faces were more likely to have been sentenced to other than death.  To see if those with more heinous crimes/backgrounds were just more likely to have “untrustworthy faces” the researchers then got photos from the Innocence Project of people who had been exonerated.  As the study abstract reported.

“[W]e found that the link between trustworthiness and the death sentence occurred even when participants viewed innocent people who had been exonerated after originally being sentenced to death.”

While death penalty outcomes are surely highly likely to be related to perceptions of character, many other decisions made by fact finders are also likely to be subject to the same kind of bias.  We believe those we think are trustworthy.

How would we try to deal with this?  Do jurors need special training in avoiding summary conclusions?  Should attorneys we allowed to make arguments using this kind of research?

And, what about self-represented litigants, who are seen most directly by fact finders and judges, and who do not receive the benefit of the implicit “vouching” that those with clients receive?

Note: Florida is very unusual in that in its death penalty procedure the jury recommendation is only that, and the judge makes the final decision.  Moreover, the jury makes its recommendation by majority vote, not unanimity.  We are told that the judge rarely does other than follow the majority vote.  Its really speculative to try to figure out the impact of this proedure on results.  (It may also be that Innocence Poject photos may be from more than Florida.)

Posted in Criminal Law, Public Defender, Research and Evalation | 5 Comments

Announcing the Access to Justice Blog Board of Commentators

I am pleased and proud to announce that fifteen thoughtful and distinguished friends of access to justice have agreed to become members of this blog’s Board of Commentators.  I am particularly pleased that not all are lawyers, since we have so much to learn from other professions and areas of knowledge and experience.

I hope that the members of this Board will help make this a much more interactive site, with a range of ideas, reactions and conversations, all ultimately advancing our understanding and energy.  The aim is to encourage, not discourage, additional comments by everyone.

Here the members are (all links are for purposes of identification and information only):

Katherine Alteneder, Coordinator, Self-Represented Litigation Network.

Martha Bergmark, Executive Director, Voices for Civil Justice.

James Burdick, MD, retired Professor John Hopkins Medical School and retired Director Health Resources and Services, Division of Transplantation, HHS.

Kelli Evans,

L. Peter Fielding, MD, retired surgeon and medical administrator.

James Greiner, Professor Harvard Law School.

Claudia Johnson, LawHelp Interactive Program Manager, Pro Bono Net.

Paula Litllewood, Executive Director, Washington State Bar Association.

Ed Marks, Executive Director, New Mexico Legal Aid

Paul Prettiore, Senior Public Sector, Specialist, World Bank.

Joyce Raby, Consultant

Glenn Rawdon, Program Counsel for Technology, Legal Services Corporation.

Linda Rexler, Executive Director, Michigan State Bar Foundation

Lisa Rush, Manager, Travis County Law Library and Self-Help Center, Austin TX.

Rebecca Sandefur, Associate Professor of Sociology and Law at the University of Illinois at Urbana-Champaign.

Gerry Singsen, Consultant, Massachusetts Access to Justice Commission.

Welcome to all.  Lets get this 100% thing going!

Posted in Access to Justice Generally, This Blog | Leave a comment

The Nighmare of Website Bias — Lack of Specific Intent, And Hard to Prevent

Back in the early civil rights days, the strongest argument against effective civil rights enforcement was the claim that employment discriminators, for example, were merely following the demands of the market when they hired the most “appealing” staff.  (For a recent general example (not apparently using that word), see here.)

The insidiousness of these risks, and how deeply engrained they are in a market economy is highlighted in the recent New York Times article by Claire Caine Miller.  It is called “When Algorithms Discriminate.”  My question is this — Can any really good profit oriented algorithm not discriminate, unless explicitly designed so it does not?”

As the article explains:

There is a widespread belief that software and algorithms that rely on data are objective. But software is not free of human influence. Algorithms are written and maintained by people, and machine learning algorithms adjust what they do based on people’s behavior. As a result, say researchers in computer science, ethics and law, algorithms can reinforce human prejudices.

Google’s online advertising system, for instance, showed an ad for high-income jobs to men much more often than it showed the ad to women, a new study by Carnegie Mellon University researchers found.

Research from Harvard University found that ads for arrest records were significantly more likely to show up on searches for distinctively black names or a historically black fraternity. The Federal Trade Commission said advertisers are able to target people who live in low-income neighborhoods with high-interest loans.

One explanation discussed in the article is that advertisers, for example, specifically ask for certain attributes, such as gender, zip code, etc, and that the “logical” result follows.

I would suggest a much deeper problem, that a well designed algorithm will inevitably discover and perpetuate bias.  For example, a good potential employee search algorithm, it would seem, should look at employment successes, find the correlates, and bump up in the results those who are more likely to succeed in the current social political and economic environment.  Similarly, a good pricing algorithm will look at things like how far people have to drive to a brick and mortar store in order to identify where the supply and demand curves interest for a particular potential buyer, and to do so will look at lots of information — all raising the price for those with less economic clout.  It’s the global extension of low income area supermarkets charging more.

The Times piece concludes:

It would be impossible for humans to oversee every decision an algorithm makes. But companies can regularly run simulations to test the results of their algorithms. Mr. Datta suggested that algorithms “be designed from scratch to be aware of values and not discriminate.”

“The question of determining which kinds of biases we don’t want to tolerate is a policy one,” said Deirdre Mulligan, who studies these issues at the University of California, Berkeley School of Information. “It requires a lot of care and thinking about the ways we compose these technical systems.”

Silicon Valley, however, is known for pushing out new products without necessarily considering the societal or ethical implications. “There’s a huge rush to innovate,” Ms. Mulligan said, “a desire to release early and often — and then do cleanup.”

I have to say that I do not think that it is enough to “design[] from scratch and not discriminate,” because it is about more than avoiding the explicit use of prohibited factors, or even identified correlates, because any good software will just be clever at finding other correlates.

Are there any alternatives to simply prohibiting price differentiation based on personal attributes (just like Obamacare does, albeit with certain exceptions!)

p.s. we explored this general topic at the first LSC Tech Summit almost two decades ago.  It is a pity that we have not continued this process.  See paper here.


Posted in Discrimination, Poverty, Technology | Leave a comment

Love’s Promises — Wonderful Book on Shaping Marriage and Family To Reflect Choice

Everyone in the access to justice community knows Karen Lash as a dedicated and brilliant deputy director of the DOJ ATJ Office.

Now she may be about to be even better known as the loving and loved family member portrayed in Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, written by her, wife Martha Ertman, a professor at the University of Maryland Law School.

It is a transformative, beautiful and astonishingly well timed, because it blends her personal story with astute yet accessible legal analysis.  It conveys both the extent to which contracts law allows people to shape what she calls “Plan B families,” and the impact on those who are able or unable to do so.  It might seem at first blush that this is now unnecessary after the recent Supreme Court decision.  In fact, such a conclusion would fail to recognize the extent to which the need to go beyond status law to shape families by agreements goes way beyond those (now much fewer) denied the availability or assistance of the legal status of marriage to define their relationships.  Rather, as Professor Ertman’s careful analysis of issues such as insemination, surrogacy, and parenthood in gay families, shows, there are still not only needs for, but huge benefits for the people involved making their own choices, and using contracts to give them their own status.  I find her brief accessible summaries of the law, stating the general rule, the exceptions, and (when needed) the exceptions to the exceptions, quite wonderful, and in exactly the same spirit as the more narrative parts of the book.

As so often, a writer speaks best for herself.  Here, with permission (rights reserved), is an extract in which she tells a story of her son and wife.

 As usual, Walter’s tearing around with other kids. This time they’re being led in a fierce game of tag by a wiry girl whom I’ve just learned has two dads. When I get a chance, I lean in to tell Walter this news, which he brushes off. But the sturdy blond behind him is nonplussed. He snaps his hand at Walter’s arm, exclaiming, “Two dads?!” clearly expecting a response.

Walter doesn’t respond, just keeps on running.

As soon as the blond boy catches up with Walter, he whaps him again on the arm, crying out more loudly this time, “TWO DADS??!!”

Again Walter blows him off and keeps running.

Finally, the blond boy grabs Walter’s sleeve, forcing him to stop and answer the urgent query, put yet again. Hovering at the sidelines, I’m wondering whether I should jump in, explain that love comes in different packages and give a few examples of Plan B families, when Walter finally responds. Apparently, he’s picked up a generous habit that Karen and Victor [the boy’s very involved father] share, finding one sliver of a statement to agree with and pretending that it’s all that’s been said.

“You’re right, it is unusual. Usually, it’s two moms,” Walter says easily, looking directly at his interrogator, barely waiting for the blond boy to take in his answer before sprinting away. The boy looks a little stunned, then grunts, either conceding the point or just giving up as he takes off after Walter.

Walter, it seems, can convey an idea much more succinctly than his mother. Though I wrote this book in part to protect him by nudging the world just a little toward embracing Plan B families, he’s doing fine on his own.

On a different front, Professor Ertman tells of her effort to persuade their attorney of the value of including emotional statements and memories in the document that restructured their family to include Karen in pre-existing Plan B family with Victor and the son.

A month before our wedding, Karen and I are here in this lawyer’s office to make sure that we’ve made Karen as much of a parent as the law will allow. But that’s edgy enough for the attorney without all the language she’s dubbed “extraneous.” I explain to her that all that mushy stuff is in the contract so that a judge doesn’t see it. Like the Utah lawyer who reviewed Victor and my initial coparenting agreement, this lawyer would rather fold Karen in as Walter’s third parent with as little flowery language as possible. She has circled my suggestion that we start off by proclaiming the “spirit of love, hope, cooperation and mutual respect” we bring to the agreement, and also the part about Karen reading Walter Curious George the first night she came over for dinner. But Gaty’s Day bugs her the most.

To defend this infusion of love into otherwise lawyerly language, I tell the lawyer that Gaty is Walter’s name for Karen, that he gave it to her when he could barely talk. Gaty’s Day was Victor’s idea, a Sunday between Mother’s Day and Father’s Day, to honor her in-between situation. Walter was just four years old then and made a card with me for her. When I asked Walter to tell me special things about his Gaty, he dictated, “She reads to me,” and “‘Gaties make Mommies happy.”

“It’s true, Gaties do make Mommies happy, and even Walter knows that if Mamma ain’t happy, ain’t nobody happy,” I finish, relieved to hear Karen’s chuckle. The lawyer’s expression remains blank, so I explain that I put the story in our contract to function like a levee. If any one of us gets awful or stupid or mean, I hope that it could hold us back from getting even more awful. The idea is that reminding us of the full hearts with which we started out could decrease the likelihood of an acrimonious, expensive legal fight that would hurt Walter most of all.

 Knowing that I’ve slipped into law professor mode, I glance over to Karen and see her wipe away a tear. That feeling is precisely what I’d like to cue up if one of us became a drug addict or went orthodox and shaved her head, either of which could land us in some other lawyer’s office to negotiate a separation agreement. The point of committing these emotions to paper is to evoke them later, if need be, to trigger memories of the full hearts and big hopes on the front end of our marriage.

To make Karen a legal parent, we each give and take. Victor and I give Karen the right to visitation with Walter if she and I break up, and Karen takes on the duty of paying child support. We also build in the possibilities of change, amping up her visitation and child support after we’ve been married for a while. Fortunately, DC has just enacted a law recognizing a status like Karen’s, calling it “de facto parenthood.”

 It takes two more trips to the lawyer’s office to hammer out terms that satisfy Karen, Victor, the attorney, and me, from lawyerly technicalities to the emotional terms we all call “mush.” What started out as an addendum to Victor’s and my coparenting agreement has blossomed into a bouquet of wills and powers of attorney, alongside the amended parenting agreement. As we sign the lawyer says that she’s never had clients think through everything so carefully, then adds, “in a good way.” On the way downstairs, clutching documents still warm from the copying machine, Karen squeezes my hand, as if she, too, feels that signing on all those dotted lines brought into being a family every bit as much as the vows of forever that we plan to recite, all dressed up and surrounded by a hundred dear ones summoned to celebrate with us.

Professor Ertman spoke at our retirement community a few nights ago.  It so happens that one of the developers of the other “Plan B“, Doctor Philip Corfman, lives here.  So we got a wonderful shot of the ultimate “Plan B family,”  The one joining the person who helped us understand Plan B parenting (and more) and the one who brought us Plan B non-parenting.  Both, of course, are really about choice and freedom.  Look at those smiles!


Posted in Family Law, LGBT, Love, Self-Help Services | 3 Comments