Quoting Robert F. Kennedy, Lisa Foster began the 59th Distinguished Miller Lecture Series with a question: “'Do minorities or people who speak our language imperfectly…or those who are poor, really receive the same protection before the courts as the rest of our citizens? All too often, they do not.'”
Foster, former director of the U.S. Department of Justice’s Office for Access to Justice, focused on three areas of the justice system in which one’s lack of access to money is a major hindrance to seeking justice in the March 2 lecture at Georgia State University.
“Money plays a large role in the court system,” she said.
She began with the bail system. “No one has really thought about bail in over 50 years, since the federal Bail Reform Act,” Foster said, “yet 63 percent of the jail population nationally is those awaiting trial.”
Those who live in poverty are overwhelmingly part of this percentage. Minorities are also at risk, she said, as African Americans and Hispanics are two times as likely to be held pretrial for non-violent offenses than Caucasians. Foster argued the bail practices of judicial systems across the United States are unconstitutional, as they rarely take into account a defendant’s ability to pay the set bail.
Court fines and fees, imposed for even the simplest of infractions, such as parking tickets or rolling through a stop sign, also put people at risk. “Such large fines and fees are inherent in a system of mass incarceration, as it defrays the cost of those incarcerated,” Foster said.
With these fines and fees comes the return of “debtor’s prisons.”
“When people can’t afford the fines, they are arrested and jailed,” Foster said. Because of this, more fines and fees are lumped in, causing the defendant to have to pay several times the amount of the original fine to just get out of jail.
“This is devastating financially to those who are poor,” Foster said.
Shifting from the criminal system to the civil one, Foster said, “there is an absence of effective legal representation in the civil justice system.”
There is no constitutional guarantee of civil representation, but the justice system in place was created by lawyers with the expectation that those using it would have legal representation, she said. In 90 percent of eviction cases, tenants represent themselves, while their landlords have counsel.
People avoid hiring attorneys due to the high cost, Foster said. An individual earning minimum wage could spend over a week’s wages on a single hour of a lawyer’s services.
However, free legal representation is vastly underfunded. Half of those seeking Legal Aid services are turned away because of a lack of resources. Foster argued that because of this lack of access to legal services, poor and moderate income individuals are often exploited and have no knowledge of any recourse.
Foster said lawyers in these situations provide a benefit other than cognizance of the law. The courts are more likely to follow the rules when both sides are represented. “Due process happens when lawyers are there to ensure it happens,” Foster said.
These conditions threaten democracy, Foster said. People distrust the entire judicial system. Their experiences in court lead them to avoid the justice system, even when they need it.
“But there is hope,” Foster said, adding several states have enacted or have pending bail reform legislation, and the Department of Justice is actively encouraging this reform. There have been similar reforms in how courts levy fines and fees, and there have been several successful lawsuits against “debtor’s prisons.”
The Department of Justice’s Office of Access to Justice was created to combat the lack of civil representation, and judges have made movements toward ensuring that there is adequate civil representation for those in poverty, such as the Justice for All program.
“Finally,” Foster said, “law schools are helping too.” She cited Georgia State Law’s Center for Access to Justice as a model with its focus on the intersection of criminal and civil justice systems.
“Her remarks could not have been more timely, given the current state of access to justice across the country, and they spoke powerfully to the impact both lawyers and law schools can have in ensuring that the law remains a tool for justice and not a contributor to further injustice,” said Lauren Sudeall Lucas, faculty director for Georgia State Law's Center for Access to Justice. “The lecture was a perfect forum to convey to the broader Georgia State community the important role our new Center for Access to Justice can play in addressing the access-to-justice crisis, particularly in the South.”
Lisa Foster's 59th Miller Lecture sides>> • The Text of Lisa Foster's Lecture