By Bob Glaves | CBF Executive Director
Over the past few months, I have been fleshing out my 2021 Resolution for the Legal Profession with lessons from the wild year that was 2020 and how that experience can make for a fairer and better future for our profession and justice system well into the future. For all the pandemic-related lessons we have learned this past year, the overdue reckoning with racial injustice is the one we absolutely cannot let get away.
On the one hand, the 2020 experience tells us that our ongoing access to justice work has never been more important, as people of color are disproportionately impacted in every way by injustices in our community that spill over into the legal system, and the pandemic has only made that worse. At the same time, however, the past year is a call to action for all of us who care about access to justice to look in the mirror and reflect on how we can do our work more equitably and inclusively—in the delivery of legal services, in the way the courts function, and in our broader legal profession.
The good news is that at every level of our legal system in Illinois–from the Supreme Court to bar leaders to public legal officers to leaders of firms and corporate legal departments—there is a recognition that we have a big problem and are committed to doing something about solving it.
That is no small thing to have all these public commitments to racial justice, which are unprecedented and set the stage for real change. But now that we are arriving at the “what are we actually going to do” part, the work is about to get a lot harder.
Recognizing that this will be a years-long process, and I am coming at this from the decidedly non-expert and non-representative perspective of a very privileged white dude in a leadership role, what follows are some broad outlines for how our legal community can and should tackle these issues. My goal here is not to come up with detailed solutions at this stage, but to take a crack at fleshing out the charge for those of us in the access to justice community and give some food for thought on how we might go about the next steps in this process.
Some Context for This Discussion
First, when it comes to the legal system, the evidence is consistent and clear that people of color, Black people in particular, are treated differently and experience worse outcomes than other people, even when other factors like income are considered.
Second, while most of the public focus on this systemic problem is on the criminal justice part of the legal system, we know these issues are just as prevalent on the civil, traffic, and administrative sides of the system, which are the focus of this post.
And lastly, wherever we are in the legal profession, we are trustees of the system and are responsible for the quality of justice. When whole classes of people are systemically treated worse than others, the ideal of equal justice for all is illusory, and our leadership responsibility on owning and fixing the problem is clear.
Access to Justice Matters More Than Ever…
Improving access to justice for marginalized communities is a critical element of a larger racial justice agenda. It is not a complete solution–in the scientific lexicon, it is a necessary, but not sufficient condition.
People of color have long borne the disparate impacts of systemic inequality in the legal system, and they now have been disproportionately impacted by the pandemic and the economic consequences of it. Whether it is eviction, foreclosure, domestic violence, consumer debt, or being victims of crimes, it is people of color who disproportionately are facing these issues and need our help more than ever as we work to tackle the longer-term systemic issues.
Many of the solutions to this problem are universal and benefit people of all backgrounds, and we need to double down on our core access to justice work. Ensuring access to free and affordable legal services, making the court system user-friendly, fair, and accessible for people without lawyers, and modernizing the way we deliver services are among the key elements of the access to justice agenda for all Americans. Because people of color are most likely to be in need on all of these fronts, however, they are the biggest beneficiaries when we succeed in our overall access to justice mission.
…But We Can and Must Do Better
That said, there is no doubt that we can and need to do this work more equitably and inclusively. We know that even if everyone had access to the legal help they need (and we remain far from that being the case), there are still disparities in treatment and outcomes for people of color.
Some of the necessary solutions can only be achieved when targeted specifically at the systemic challenges people of color encounter every day. We need to support the work of the organizations tackling those larger systemic issues through advocacy and litigation as well.
And all of us working in access to justice—individual lawyers and legal professionals, pro bono and legal aid organizations, the organized bar, pro bono partners, and funders—can improve the way we connect with and serve people of color. Some of the key issues to tackle on that front include:
- Better connecting to communities we serve, which includes listening to and understanding their needs
- Identifying systemic racism issues that impact pro bono and legal aid work and collaborating with organizations tackling those issues
- Expanding training in “JEDI” (Justice, Equity, Diversity, and Inclusion) strategies and cross-cultural lawyering, and prioritizing associated action plans
- Increasing the use of holistic service strategies
- Increasing consciousness of the language we use
Taking the above steps in the way we deliver legal services (and that is not an exclusive list) can take us a long way, but the courts have a critical role to play on this front as well.
An equity framework for the courts and legal system
In the continuing quest to build a more perfect justice system, we generally speak in terms of equal access and equal treatment as the ultimate goals. These are worthy goals, but when so many are starting from a disadvantaged place, it often is not possible to achieve without taking equity into account.
The following excerpt from Professor Alvin Tillery’s Leading Diversity, Equity, and Inclusion course at Northwestern University, which I am taking right now and definitely recommend, gives a good overview of the differences between equality and equity and helps to think about this in the context of the court system.
“The Government Alliance on Race and Equity, a US national network of government working to achieve racial equity and advance opportunities for all, explains that “equality and equity are sometimes used interchangeably, but actually convey significantly different ideas.
Equality is… concerned with treating everyone the same; whereas, equity is about offering different types of support to ensure that everyone has a fair chance of being successful.
Figure 1: Differentiating between equity and equality.
In Figure 1, equality is depicted as all individuals receiving the same treatment and opportunities. Consider a democratic society; this societal structure is based on the fundamental ideal that everyone has equal access to the same opportunities, information, influence, and can benefit from society (Kranich, 2005). However, in a society divided by economic, social, and political advantage and disadvantage, along with the consequences of privilege and exclusion, equal access to opportunities, information, and influence does not ring true for all. It is for this reason that equity plays an important role.
In the case of equity, the desire to create equal opportunities, to “open the playing field for everyone”, is taken a step further with justice and fairness in mind in order to “level the playing field for everyone”. With this in mind, return to Figure 1. Although individuals on the left-hand side are given equal opportunities, some are not benefitting from this equal treatment as they might be facing challenges due to socially- or historically-shaped ability or access to resources. These challenges need to be overcome to ensure fairness.“
This is an interesting concept to consider in the court context. From the earliest days in old England, we have had courts of equity that for certain classes of cases can use principles of equity to ensure fairness and justice. But for most of the court system, we have been more concerned with treating everyone equally even when that leads to objectively unjust outcomes.
Building an equity framework into the system could significantly improve fairness, access, and trust in the courts for all. This concept already is accepted in many areas of the system—for example, interpreters for people who face language barriers—but it should be used much more widely to ensure people are getting a fair shake in the system.
In considering this issue, we need to recognize the courts and the larger legal system don’t get to choose the cases coming into the system and inherit a host of societal challenges and policy failures that are outside of their control. Prominent examples include structural racism that has been baked into our local and national policies and systems over many decades, an inconsistent investment in safety net programs, and our country’s broken immigration system.
While the court can’t fix these issues directly, they can more openly acknowledge them and take affirmative steps to try to mitigate the inherent challenges as much as possible.
A good example is the Cook County Legal Aid for Housing and Debt (CCLAHD) program, which covers eviction, foreclosure, tax deed, and consumer debt cases in the Circuit Court. These are all cases where the defendants are disproportionately people of color, almost always unrepresented, and facing serious issues that can impact their safety and independence.
Through active case management and strategic partnerships that are publicly funded and integrated into the program, the program connects unrepresented litigants with legal assistance and early resolution services as well as housing and financial counseling and programs providing rental or mortgage assistance. The court process is modified so litigants have time to access these resources and attempt to reach an early resolution where possible, helping ensure people receive a fair shake in the process.
There are other good models in the courts to look to as well (e.g., problem solving courts), but there is much more potential and need throughout the system. Other areas an equity framework could help improve fairness and access include:
- Maintaining remote access as a realistic option for both litigants and lawyers—it is not just an integral step for access to justice, but for ensuring equity as well.
- Speaking out and advocating for other resources necessary to achieve fair and just outcomes (e.g. for cases where we know access to legal representation is critical to a fair outcome, advocating for that funding and not implying the courts can deliver justice without it).
- Ensuring fees and fines are not a barrier to participation and fair outcomes for low-income people.
These are just a few examples of how an equity framework can bring much-needed improvements to the system, and it is going to be one of the CBF’s priorities in the coming months to further this conversation.
Looking in the mirror as a profession
I touched on this in last month’s post on building a better practice for the future, but one other overarching issue should be part of any racial justice action plan for our profession. It is now well-known, that diversity in the legal profession remains far out of step with our community and country, and that women and people of color face continuing challenges to advancement once they are in the profession.
While the needle is moving in the right direction on these fronts, it is moving far too slowly. We need to look critically at this problem and be willing to rethink the fundamentals of how people become part of our profession and advance in their careers. There can be no sacred cows if we are going to honestly have this conversation.
Give the Gift of the Benefit of the Doubt
The last point to make here is that the easy part is saying we need to do these things; it is going to be much more challenging when we get down to talking about solutions. As I said in the original 2021 Resolution,
“These are going to be uncomfortable and difficult conversations, especially for those who have experienced racial injustice firsthand. We need to recognize that not everyone is starting from the same place or even using the same language in these discussions, but not let that deter us from having the conversations and turning them into action.“
We can agree on the need for action but may disagree on the solutions, but if we committee to tackle these issues in good faith, we have a better chance of working together toward real solutions.
When the Going Gets Tough…
And it will, don’t give up. While it is long overdue, we may never have a better opportunity to build a more perfect justice system that is fairer, more equitable, and more inclusive for all.