Access beacon and energizer Karen Lash of DOJ gave the keynote last weekend at the wonderful Rothgerber Conference, TOWARD THE CONSTITUTIONAL RIGHT OF ACCESS TO JUSTICE: IMPLICATIONS AND IMPLEMENTATION organized by Melissa Hart for the University of Colorado Law School.  The keynote was so moving, powerful, and energizing that I asked permission to post it on this blog, and now here it is.  Please share, both as a moving reminder of what can be done, and as a guide to the DOJ Access Initiative’s focus, direction, and activities.

Doing Justice to Law

Rothgerber Conference Comments

Karen Lash

Denver, CO

Nov. 4, 2011

Thank you Deborah [Cantrell], for your generous words, which mean so much, coming from you.  Thanks too to Colorado Law Professor Melissa Hart, director of the Byron White Center for the Study of American Constitutional Law, for organizing what is already an amazing Rothgerber Conference.  It’s a particular honor to be here in the high altitude at the top of our profession, swapping ideas with folks from the Colorado ATJ Commission, the Universities of Colorado and Denver, state and federal government, private attorneys, the legal academy, judiciary, and local and national advocacy organizations.  If it takes a village to raise the bar for access to justice, the villagers here are the ones to do it.

I was deeply honored when Melissa called inviting me to join this impressive gathering of leading thinkers.  I asked her what kind of a conference it would be – more of a think tank-like gathering, an academic fountain of ideas, or more of a “do tank,” to  hammer out concrete plans for  what to DO.  She answered, “both.”  My remarks, therefore, center on how people in the business of thinking translate their ideas into action.  First, I’ll describe how our office — the US Department of Justice’s Access to Justice Initiative — is translating ideas to actions, and then invite us all to “do” something new to get the ideas generated here out of the room and into the streets.

I say “something new” with humility, recognizing that each of you are already doing so much to support local and national efforts that provide critical and often life-changing legal services to those who cannot afford them.

Moreover, if what Melissa had in mind was someone to bark out a rallying cry from the ramparts, I fear she’ll be disappointed, because I don’t have that skill.  Instead, I speak as a first-rate noodge, a Yiddish term for kind of a pest, derived from Polish words for fretting and aching, but not quite as bad as a nudnik.   Some of you know this about me first hand.  Having never thought much of “don’t ask, don’t tell” in any form, I’ll be making a noodgy ask before lunch is over.  I’ll challenge each of us to just DO something, just a little something, more than what we do now.

First, I’ll talk about what the ATJ Initiative is doing.  Our office, the brainchild of the President and Attorney General Eric Holder, opened in March, 2010, led by the legendary Larry Tribe.  More recently, Mark Childress stepped in as our new Senior Counselor.

Mark has spent most of his professional life learning how both the executive and legislative branches of government work – working for Senators Daschle and Kennedy, and most recently as acting General Counsel for Health & Human Services.  This man knows where the federal levers are, and how — as he is fond of saying — to use the inertia inherent in bureaucracy to our advantage, and find ways to fold access to justice considerations into government processes and procedures where-ever possible.

We have focused on studying and improving civil legal assistance to poor people as well as the closely-related crisis in indigent defense.  Two small, manageable tasks for a staff of six.  But even without a grant-making budget or any enforcement authority we’ve  discovered that other useful tools came with  our little office in the Main building of the Department of Justice: a bully pulpit; mechanisms to convene  and connect players; access to Department of Justice policy makers like  the Solicitor General and Office of Legislative Affairs, as well as to other federal agencies that might consider spending THEIR grant dollars to increase access to justice; and the ability to inject ATJ perspectives in  the more than a dozen inter-agency working groups on which we serve.  All these levers combined, it turns out, can nudge – or noodge – us, as a country, closer to the national ideals of justice for all.

On the defender side we’re working to help states develop high-quality indigent defense systems.  That includes working to expand research and data on delivery systems, and to increase funding, training, technical assistance, and other support for Defender Programs.

One recent example involves a new partnership with our office, the Bureau of Indian Affairs,  Federal Public Defenders and the Executive Office for US Attorneys to organize the first tribal court trial advocacy program for tribal defenders, prosecutors, and judges.   This historic Rapid City training was so successful that five more are now planned in Arizona, Mississippi, Montana, Oklahoma, and Washington.

On the Civil side, we’re supporting development of quality civil legal aid systems.

One recent example of using the bully pulpit to this end occurred just a few weeks ago, when we gathered at the White House to honor 16 remarkable advocates from across the legal profession whom President Obama had designated as “Champions of Change,” including The Brennan Center’s Laura Abel, who is here today.

These Champions engaged in a dialogue with the Attorney General based on questions posed by law professors and law students across the country about their work helping families facing foreclosure, addressing civil rights violations, and improving court access for people with limited English proficiency.  Watching live on-line were students, staff, and faculty at 118 law schools – including both Colorado and Denver – bringing thousands together for a conversation that reflected how much this Administration values public interest legal work and seeks to encourage and support the next generation of public interest lawyers.

We’re also working hard to preserve existing funding and unlock new funding streams, also known as noodging other agencies to spend their grant dollars with ATJ in mind.

The latest example involves working with the Department of Labor on their job-training grants to help people with criminal records get jobs and generally rejoin their communities.  The Department of Labor has agreed to allow, and even encourage, using these job-training grant funds to include legal services.  The idea is that even the best job-training program works better if a man who goes through the training can get his record expunged, or get back his revoked drivers license so he can get to the interview and have a better chance at getting the job.  Along the same lines, modifying his child support order to reflect unearned dollars while in prison could leave him enough money to pay his rent.  A “before” and “after” demonstration at our meeting with the Dept. of Labor vividly showed the difference a little lawyering can make.  Here’s the rap sheet of a client of NY’s Center for Community Alternatives before getting legal help.  [HOLD UP SHEET A – FULL-PAGE OF TEXT]

Here’s the same guy’s rap sheet after a lawyer removed all the information that isn’t allowed under NY law, corrected mistakes and removed duplicates.  [HOLD UP SHEET B – JUST TOP 1.5 INCHES OF PAGE HAVE TEXT]  Legal help, here, could make the difference in one man, and over scores of clients and grants, a program’s success.    Now, when new Department of Labor reentry job-training programs grant solicitations are released, we’ll make sure the word gets out so that legal services programs and their local potential partners know they are eligible and encouraged to include legal services in their grant applications.

We will continue to pursue this strategy aggressively since we believe there are other federal government safety-net programs that could also work better with legal aid lawyers on the team.

These are just a few of the strategies we’ve learned we can do during our brief tenure.  They make some small headway in closing the justice gap, but we can’t do it alone.  As Uncle Sam has said before, We need you.  Indeed, our work depends on what you do — your research, your pilot projects, your lessons learned, your new court rules, such as Colorado’s recent rule enabling unbundling services, your new clinics, all of it.

That’s the soft transition from the talking to the noodging .  If Melissa and the other conference planners took full advantage of the extraordinary talent and expertise in this room, you’d all commit to doing something extra to close the justice gap.  Given who is here, and the conversations underway, identifying the “what to do” prospects is pretty easy.

Steve Scudder is prioritizing the big pro bono ideas just amassed at the ABA’s Pro Bono Summit – Colorado well represented by Justice Hobbs and Jonathan Asher — and needs help.

The Turner v. Rodgers panel wants help thinking through and implementing their ideas for a post-Turner strategy so we can ensure self-represented litigants actually get meaningful access.  In fact, I’ll digress from the “what-to-do” prospects to make an offer of the sort we hope you’ll be making.  Thanks in large part to the human catalyst Richard Zorza, our office and the Health & Human Services Office of Child Support Enforcement – represented today by Nancy Thoma Groetken — have launched an interagency working group to develop a federal strategy to address the marching orders in Turner.  Turner panelists, I took lots of notes and hope and expect we can do something together.

Jeff Selbin will talk about his work with Becky Sandefur studying the “clinic effect” and hope academics will take that information back to present to their faculties.

The Cause Lawyering panel needs help with their campaign for Cause Lawyering course offerings at more law schools.

The Research panel will make the case for plugging the research gap.  A sustainable organized research capacity hasn’t existed since 1981 when the LSC Research Institute run by Alan Houseman had to shut its doors.

David Udell wants partners to figure out what measures should be used to tell us if our legal systems are delivering justice.  And, what methodology should be used to establish best practices.

Alan Houseman will ask us to enroll the business community in the Access to Justice cause.

I hope these ideas and many more will be translated into action and advanced in the Operationalizing panel.  There will be no shortage of excellent to-do options from which to choose.

Along the way, as you decide just what task to embrace, keep in mind the words of the Nike commercial, “Just do it.”  Nike, afterall, is the Greek goddess of victory.   Or, more directly on point, is JFK’s famous charge to late 20^th century idealists asking what you can do for your country, not what your country can do for you.  If you are more inclined toward the  non-governmental sector, remember the words of  Dr. Martin Luther King,  celebrated not just for his dream but for the things he DID to move towards making that dream reality.  He said, “The time is always right to do what is right.”  In the same spirit, death-penalty activist Sister Helen Prejean said in her contribution to NPR’s This I Believe series, “The only way I know what I really believe, is by keeping watch over what I do.”

In the spirit of the words of these giants, let me begin to noodge.

Last September a NY Times article, “Making Change Happen, on a Deadline” described how the World Bank uses a strategy called Rapid Results to achieve big goals in just 100 days.  From Nicaragua to villages in Ghana and Sierra Leone local NGOs tripled the number of people who got tested for HIV, quintupled the use of family planning services, and improved local infrastructure by digging wells, and building schools.  Apparently the “Rapid Result” technique works because deadlines, motivation and confidence are often more important than technology and money.

Today, all I’ll ask you to do for your country is answer an email about your Rapid Result.  In 100 days, I’m going to send each of you an email, asking about your version of Rapid Results.  What did you advance – what one thing that has been inspired, catalyzed or planned at this conference.  We’ll collect your responses, and depending on what we get, we’ll find ways to use it.  It could be in speeches, ideas introduced to a relevant interagency working group, shared at conferences, or an entry for the Department of Justice blog, about what you’ve done, what you’ve learned about what you’ve done, and what next steps you’ve planned.

Looking at the people in this room makes me optimistic that we really can close the justice gap.   As long as we don’t give in to cynicism, to the temptation to not try and give up.   Recall the last time you sat through a meeting, and someone said “we can’t do that because we’ve never done it before” and a few minutes later someone else said, about the same thing, “we tried that and it didn’t work.”   Our job, all of us in the profession of protecting and preserving justice, is to fight off cynicism with the same strength and ingenuity that we fight injustice.   I think we’ll be amazed by what can happen, in just 100 days.
To put a new spin on a popular bumper sticker, “shift happens,” even when all the instruments we have predict that shift is impossible.

• Six states and the District of Columbia, where I live, shifted toward marriage equality, allowing me to marry the woman I now call my “wife.”

• Technology shifted transportation into the very skies, as my wife and I learned last summer on a beach vacation in the Outer Banks.  People said the Wright Brothers would never achieve powered air flight.  But they did.  And only 65 years after the Wright Flyer took flight – really, it was the equivalent of a bike with a little motor and wings – the Apollo 11 landed on the moon.

• Justice shifts, too.  Before 1963 few lawyers dared to imagine that federal constitutional law would compel counsel for every indigent criminal defendant facing possible jail time.  But Gideon v. Wainwright happened.

Every day when my colleagues and I begin our work shifts by walking into the Department of Justice, we see photos of President Obama and Attorney General Holder.  Every day, those pictures remind us that while U.S. race relations remain troubled in many ways, seismic shifts have also happened.  Despite persistent gaps between law on the books and law in action – not to mention ideals and everyday life – shifts continue to happen.    I’ll press my “shift” key in 100 days as I type my emails noodging you about what kind of justice you’ve done to your to-do list lately.  I look forward to weaving those deeds together, and sharing what we are all doing to achieve the fundamental promises of our country.

Thank you.