Director Rachel Rossi of the Office for Access to Justice Delivers Remarks at the 26th Annual Liman Colloquium at Yale Law School

Remarks as Prepared for Delivery

Good evening.

It’s an honor to be here today, in the company of so many advocates, academics, policymakers and local leaders.

Thank you, Lisa, for that kind introduction. It’s an honor to stand on your shoulders as one of the initial leaders of the Office for Access to Justice – we are indebted to the groundwork you laid that allows our office to be here today. 

I also want to thank Yale Law School’s Liman Center, the Fines and Fees Justice Center, the Center on Budget and Policy Priorities, the Policy Advocacy Clinic at the UC Berkeley School of Law and the Brennan Center for Justice for organizing and hosting this important convening.

Our mission at the Office for Access to Justice is to engage in the bold and systemic work necessary to ensure that all communities have access to the promises and protections of our legal systems.

For those of you who are unfamiliar with our work, we are a young office, but we are already at 32 people strong, and we have hit the ground running. In just the last year-and-a-half:

We led the drafting and publication of the Reentry Coordination Council’s Report, a collaboration with six other federal agencies to present recommendations to Congress on reducing barriers to successful reentry for individuals released from incarceration.

We worked with system-impacted individuals to host a Reentry Simulation that allowed high level officials to better understand and discuss the complex hurdles and barriers faced by people impacted by the criminal legal system.

We re-launched the Justice Department’s Language Access Working Group, with a vision to ensure that across all Justice Department programs, services and activities we mitigate barriers to access for the millions of individuals who don’t speak English as their primary language.

We led a country-wide tour to mark the 60th anniversary of Gideon, during which high-level Justice Department officials joined me in visits with public defenders, impacted communities and advocates across the United States, from urban centers, to southern, midwestern, Tribal and rural areas.

We moved the Federal Government Pro Bono Program into our office and expanded its resources and staff for the first time in over 20 years. The Federal Pro Bono Program finds and vets opportunities for government lawyers to engage in pro bono work, connecting attorneys with pro bono opportunities and assisting attorneys in the cases they take on. Currently, over 50 federal agencies participate in the Program.

We steward the Legal Aid Interagency Roundtable – bringing together 28 federal agencies to improve coordination among federal programs and increase availability of meaningful access to justice for individuals and families.

Earlier this month we released the 2022 Roundtable report — Access to Justice Through Simplification: a Roadmap for People-Centered Simplification of Federal Government Forms, Processes, and Language. And just last week we hosted the 2023 Interagency Roundtable kickoff meeting.

And we’re reinvigorating the voice of the United States on access to justice globally. Last month, I participated in a Summit for Democracy day zero event with USAID to discuss people-centered justice. 

Finally, as many of you heard from the Associate Attorney General this afternoon, the Office for Access to Justice joined the DOJ’s Civil Rights Division and Office for Justice Programs in issuing a Dear Colleague Letter yesterday regarding the imposition and enforcement of justice-related fines and fees.

Before the Office for Access to Justice was even reestablished as a component, we received letters from many of those in this room in the spring and summer of 2021 requesting this fines and fees guidance be updated and reissued. And I want you to know that our office, the Office of Justice Programs and the Civil Rights Division heard you, and immediately got to work on this effort. 

As the letters requested, in addition to addressing the legal obligations of courts in this area, the Dear Colleague Letter encourages court and justice-system stakeholders to consider the practical realities that weigh against assessing fines and fees without regard for ability to pay and urges courts to adopt a presumption that children and youth are never able to pay court-imposed assessments.

This, of course, brings me to the reason we are here today.

As ATJ pursues our mission to make real the promise of equal justice for all, regardless of economic status. Our work is guided by three central principles:

Increasing justice system access;

Safeguarding justice system integrity; and

Accelerating justice system innovation

I’d like to speak today about each of these principles, how they relate to the over-reliance on fines and fees by our nations’ justice systems and how they guide our pursuit of economic justice.

Our first guiding principle is increasing justice system access. ATJ’s commitment to breaking down barriers to accessing our legal systems is perhaps the most intuitive aspect of our work. And there are myriad ways justice system fines and fees implicate this principle.

When we charge defendants fees to be represented by public defenders, low-income individuals are far more likely to waive their right to counsel, and far less likely to exercise their right to trial. When we condition access to a diversion program on a person’s ability to pay a service fee; require defendants to clear all debts before receiving a court date; or charge a fee to seek a protective order, we expressly hinge access to the promises of justice on economic status.

Another core guidance principle for our office is safeguarding justice system integrity. Often, increasing access to justice requires more than dismantling the barriers that keep people from entering the courthouse doors. Equal access to justice requires us to root out longstanding systemic inequities as well, to ensure the integrity of the legal systems themselves.

This requires us to re-think our legal system practices, even when they appear harmless. What can viewed as a routine administrative fee can sometimes preclude certain communities from accessing the protections of our laws. While a $500 fine may be an inconvenience to an affluent litigant, for a low-income individual it can mean choosing between paying the assessment and feeding their children or paying rent. And if an individual chooses food or housing over the court, the ramifications, both direct and indirect, often escalate at an astonishing rate.

As those in this room are well aware, individuals who are unable to pay court-assessed fines and fees can face snowballing financial penalties, extended justice-system involvement, suspended drivers’ licenses and unnecessary incarceration. Last night, Bryan Stevenson spoke about Martha Menefield, an 82-year-old grandmother arrested and placed in jail for failing to pay a $77 trash bill. Many here know the faces and stories of too many people with similar experiences.

And the indirect consequences can be even more devastating—loss of housing, employment, access to necessities, and even custody of one’s children.

Pervasive systemic injustices in our legal systems can result in the punishment of poverty.  And these burdens are not borne equally across low-income populations: extensive research, including the Department of Justice’s own investigation into the Ferguson Police Department in the aftermath of Michael Brown’s death, has demonstrated that fines and fees often disproportionately burden Black communities. 

In short, unexamined reliance on fines and fees, without regard for discriminatory effect or ability to pay, is a core barrier to equal access to justice in this country. And our office is committed to developing policies and initiatives to help bring this barrier down.

As the Associate mentioned, last summer, the Office for Access to Justice partnered with the Civil Rights Division to issue a statement of interest in a case against the Town of Brookside, Alabama.  The facts of that case will sound familiar to many in this room:  According to the Plaintiffs, both fines and fees collection and vehicle seizures ballooned between 2018 and 2020.  The town saw a nearly eight-fold increase in traffic citations.  By 2020, revenue from fines, fees, and forfeitures made up around 49% of Brookside’s annual revenue.

Our statement of interest noted the Constitutional protections under the Fourteenth Amendment’s Due Process Clause, which prohibits significant financial and institutional conflicts of interest, including in the enforcement of fines, fees and vehicle seizures. Just last month, the Court denied the Town of Brookside’s Motion to Dismiss. In reaching its decision, the Court placed special emphasis on the United States’ Statement of Interest.

This guiding principle of justice system integrity means that improving access to justice systems as they currently exist is not enough.  We also need to transform the systems themselves, and the way we fund our justice systems is only one piece. 

We need to examine why race and wealth are reliably predictive factors in justice outcomes, and why the most vulnerable in our society continue to be disproportionately punished. This is not simple work, but I, along with my Access to Justice colleagues, are in it for the long haul.

This leads me to our final guiding principle. Accelerating justice system innovation. The simple reality is that courts and government agencies have come to rely on fines and fees, for both revenue and punishment. It is not enough to say “stop;” we have to offer alternatives. And we have to bring those alternatives to communities that would not otherwise have the catalyst or resources to explore a different approach.

This requires better understanding the true impact of our policies and developing creative solutions.  For example, if someone cannot afford to pay a fine or fee, adding additional charges can often decrease the likelihood that the court will recoup even the underlying assessment.  San Francisco’s recent innovative experiment with parking tickets bears this out — when the city lowered the fee to register for a parking ticket payment plan from $60 per person to $5 for indigent individuals and $25 for other registrants, the city’s net revenue from parking tickets increased more than three-fold.

Identifying, developing, and sharing alternatives is not always an easy task, but this goal is furthered by conferences like this one. The combined advocacy, research, and policy expertise of the individuals in this room is unmatched.  And your tireless efforts have spurred reforms to fines and fees practices throughout the United States. 

ATJ is committed to lifting up these efforts, and to creating opportunities for advocates and innovators like those in this room to share what has worked and what can work.

To this end, I am excited to announce today that, as a follow on to our guidance released yesterday, ATJ will be conducting an in-depth review of current fines and fees practices throughout the country and preparing a report highlighting the most innovative and effective work in this area by states, municipalities, and court officials. This report will aim to serve as a guide and resource for other leaders who aspire to implement more just and effective fines and fees practices.

So what’s next?

Thanks largely to the efforts of the individuals in this room, the last five years have seen meaningful fines and fees reform at both the state and local level.

At least five states have banned juvenile fines and fees outright. Others have abolished certain categories of fines and fees in both the juvenile and adult systems, with California eliminating 23 different criminal administrative fees in 2020.  

About half of all states have, to some degree, moved away from using driver’s license suspensions as a penalty for inability-to-pay justice-system assessments. Other states are pursuing creative solutions outside the legislative process. This morning, Lisa spoke about the New Jersey governor’s use of the budget process to decrease his state’s dependence on fines and fees. At lunch, Colorado and Washington Supreme Court Justices Earls and McCloud spoke about the role of state judiciaries in effectuating change. And municipalities have begun experimenting with amnesty days, penalty free payment plans, community service in lieu of repayment, mass dischargement of court debt, and more.

These accomplishments are worth celebrating. But no one here needs to be reminded that we still have far to go.

We hope those in this room will share the Dear Colleague Letter we issued yesterday far and wide, and that it will help state and local courts reduce their reliance on inequitable and counter-productive assessments.

On our end, we look forward to sharing the Dear Colleague Letter with interagency and global partners.  And as this topic remains at the forefront of the global access to justice conversation, we look forward to hearing more about how our international colleagues tackle these challenges and bringing the lessons we learn back home.

The Office for Access to Justice is also in the process of developing a streamlined and reinvigorated Statement of Interest practice, and we look forward to sharing more about this effort in near future. In the meantime, we will continue to look for opportunities to support litigation like that brought against the Town of Brookside.

And finally, as I mentioned earlier, our office will be issuing a report highlighting best practices and innovative approaches to reducing the burdens of fines and fees on low-income communities. We hope this resource will serve as an inspiration to jurisdictions that are eager to build a more equitable justice system, but don’t know how to reconcile this desire with budgetary restrictions. As part of this effort, we will also conduct a review of the fees that are assessed before, during and after conviction in the federal system, and look to highlight best practices or examples to assist jurisdictions in this shared goal.

We will certainly be reviewing the Dropbox folder the Liman Center pulled together for this colloquium.  But if there are particular examples you think we should be aware of as we launch this effort, we want to hear from you.  Please connect with Annie Hudson-Price with our office, who is here today and leading this work for the Access to Justice Office.

Before I conclude, I want to thank everyone here for your tireless work in this field.

As a former public defender, I have personally witnessed the devastating cycles of poverty and justice-system entrapment that court-assessed fines and fees can perpetuate. I remember the clients who I saw over and over again for misdemeanor criminal offenses like driving on a suspended license, a priorable offense with mandatory jail time attached, simply because they could not afford to pay outstanding debt, but still needed to get to work or take their children to school.

Assessing fines and fees without regard for ability to pay not only perpetuates existing inequities, it is often counter-productive. The pressure to resolve escalating debt from court-assessments can drive individuals to engage in the very behavior the justice system is supposed to deter.

Stripping a person of their driver’s license makes it less likely they will be able to earn a living. Prolonging justice system involvement increases barriers to employment and undermines housing stability. Incarcerating someone for their inability to pay a fine or a fee often costs the system more than would be recouped for the underlying fee itself.  Some cities and counties that have done a thorough accounting of their fines and fees practices, like Alameda, have even found that they spent more attempting to enforce and collect assessed fines and fees than they ever recouped.

As national awareness of the harmful and counter-productive impacts of fines and fees grows, thanks largely to the shared commitment of those in this room, so does the eagerness to improve policies and implement better practices. This is essential work. And I look forward to continuing to partner with you in the pursuit of access to justice for all. 

I’m happy to take any questions.  Thank you.