IAALS Path to Justice Summit: “Identifying Barriers to Equity in the Justice System”

Patrick Shelby
LAW WEEK COLORADO


The Institute for the Advancement of the American Legal System hosted the first of two webinars, “Identifying Barriers to Equity in the Justice System” as part of their Paths to Justice Summit Series on Dec. 15. While there has been a lot of focus on racial injustice in the U.S. criminal justice system, the event recognized similar inequity in the civil justice system. 

The IAALS’ recent report, “Justice Needs and Satisfaction in the United States of America,” highlighted the justice problems encountered by Americans in their daily lives and how they are hindered by certain factors, which are not equally distributed. 

There are many ways in which the legal system is set up that create injustices and inequities based on race and ethnicity, socio-economics, gender and disability, according to the report. The purpose of the webinar was to recognize some of the barriers that continue to hinder equity in the justice system so that innovations and system improvements to spark change can be discussed.

The event featured a group of experts consisting of Center for Court Innovation Executive Director Courtney Bryan, Access to Justice Counsel for Equity, Diversity and Inclusion at the State Court Administrator Valerie Colas and Dean and Professor of Law at Hawai’i at Manoa, William S. Richardson School of Law Camille Nelson. The panel was moderated by Judge. Jeremy Fogel from Berkeley Judicial Institute. 

Fogel began the discussion by reflecting on the justice system’s historical origins and changes.

“Where we started was with a system in which the only people who had legal capacity were white men that owned property and where we had slavery as a legal institution. We’re obviously some distance from that, but it’s always important I think to remember where we came from,” Fogel said. 

The moderator believed people began to address some of the structural issues to make the justice system more fair and equitable, particularly in regard to race and gender.

Fogel invited panel members to approach the topic from their individual perspectives and areas of expertise. He asked Nelson, with her leadership role as an educator, where she sees the principal barriers to equity in the civil justice system?

Nelson focused her discussion on diversity, equity and inclusion on the makeup of the legal profession, the practicing bar and the bench, and how to build structures that lead to greater diversity.

“I do think with greater diversity, you have a more robust conversation that allows for myriad points of view to enter into spaces that we need greater and enhanced thinking in,” Nelson said. “We’ve made some progress, but it’s sometimes discouraging to see when you step back, how little progress we’ve made in certain spaces. And I do think we need to be honest about that and ask ourselves, why?”

By continually looking at who is in the profession, how to energize and invigorate the field and bring diverse voices along all identifiable and intersecting trajectories are important areas to be evaluated, Nelson said.

The dean added that law schools need to be viewed and thought of in the same manner. Nelson said it’s also important to know who are in the schools and where they come from.

Nelson explained that there is an extraordinary number of faculty members that are drawn from the U.S. News and World Report’s top five or top 10 schools. “If you look at who’s actually teaching, most of us are drawn from a very tight sliver of schools and so that’s a remarkable impact,” said Nelson.

Curricula changes to decolonize and reflect shared legacies in law schools has a reverberation on traditional law school studies, according to Nelson. 

Fogel asked Colas, who has engaged in concrete efforts to diversify the bar and to make the community of lawyers more inclusive in Oregon, her thoughts on the principal barriers. 

“The way that our system was designed, it was designed for and by legal professionals, legal advocates. It’s very lawyer centric and there is a model for what is considered professionalism, and that model is white male,” Colas said.

There’s rarely thought given about who else belongs or whether the historically marginalized and racialized groups do not have the access to support systems, Colas said. 

A deeper examination is required to find out why that is and how to provide the support, Colas added. Assistance could come from state bars or other local bar associations that can provide support systems, mentorships and opportunities for law students to become attorneys and to have the same opportunities as others, she said.

Another issue Colas voiced was the failure to study how historically marginalized and racialized groups continue to be excluded in the law or other spaces both in how they are admitted into the practice of law, but also in terms of the court.

The lack of adequate funding to provide legal assistance to individuals and restrictive funding, which prohibits addressing additional contributing legal problems in the case, are factors that fuel inequity, Colas said. In an Oregon Civil Needs study in 2018, the data indicated people experience an average of four to five legal problems, and yet, when it comes to legal representation, they are not able to represent the person “holistically,” she said. 

“Oregon is not as diverse as we would like to be and I think back when we looked there are at least 130 black attorneys licensed in Oregon, and for other racial and ethnic groups, the percentages are very low, said Colas. “So we need [to] figure out ways to attract attorneys when they are graduating from law schools to come and practice in different areas. But to also practice in areas [that offer] legal aid [to those who can’t access a lawyer] and we have to look at how we’re funding legal aid, and how attorneys are actually able to get the compensation that they need to be able to go back to their communities and serve them.”

Fogel turned to Bryan and inquired about what she thinks, on a systemic level within the court system structure, are the fundamental barriers for increasing diversity, equity and inclusion. 

“The system is not set up to serve people, it’s set up to serve itself, systems and organized in a way that makes it easier for systems to function as opposed to really serving people’s needs,” Bryan said. “People have issues that cross multiple jurisdictions and multiple areas of the law.” 

The legal system catches broader failures of social policy and it was built on a legacy of systemic racism and marginalizing non-dominant groups in both criminal and civil context, Bryan said.

The lack of participation in the civil setting is clearly the most obvious and significant barrier,  according to Bryan. “The right to counsel is the gold standard,” but there is more that can be done for greater equality of representation both in and out of court, she added.

“So what can we be doing to prevent matters from even having to come into the legal system that [doesn’t] rely solely on lawyers and those kinds of solutions?”Bryan asked. 

An in-depth examination of legal system barriers looking into itself creates barriers to equity. Because the system has not been built and designed to look into serving a community, assess what their particular needs are and organize resources to serve them, Bryan said. 

Fogel said there is strong data indicating people feel alienated from the legal system, which is meant to serve them.

“If you’re a person who doesn’t have a lot of resources and you have legal problems, which are a part of greater life problems,” Fogel said. “The system is just not set up to deal with that at all.”

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