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Laurence H. Tribe, Senior Counselor for Access to Justice, Speaks at the National Institute of Justice
Arlington, Virginia ~ Monday, June 14, 2010

A video of this speech can be viewed on the Office of Justice Programs website.  

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As prepared for delivery.

Thanks so much for that generous introduction, Kristina. And thank you for joining our Office of Justice Programs’ remarkable Assistant Attorney General Laurie Robinson in inviting me here to speak with this distinguished group today. I do have to add a word of apology along with appreciation to Laurie in particular.  I have to apologize for stealing, as my principal deputy in the Access to Justice Initiative at the Justice Department, one of Laurie’s most accomplished, knowledgeable, and energetic protégés, Lynn Overmann.  “Stealing” isn’t exactly right, because Laurie – reluctantly, but generously – gave Lynn’s move from OJP to ATJ her personal blessing.  Lynn has brought with her to my office much of what only Laurie is capable of teaching, so it’s to Laurie that I owe a great deal of what I’m confident my initiative will be able to accomplish. 

As my staff can attest, I have been very much looking forward to this event. The National Institute of Justice was founded just as I was ending my days as a law clerk at the Supreme Court – and ever since, I've followed its work with deep interest and appreciation. Four decades later, it is an honor to be here, in my new capacity as Senior Counselor for Access to Justice, to speak to your institute – an institute that reflects our nation's greatest traditions, on a topic that calls forth our greatest ideals.

I used to be what some people call a "hard scientist.” I received my undergraduate degree in math and spent a year on a National Science Foundation fellowship completing pretty much all of the coursework for a PhD in mathematics at Harvard – becoming what I think they used to call an “ABD,” which stood for “all but dissertation.” I worked six summers at the Lawrence Radiation Lab in Berkeley doing high-energy physics and programming computers and a year at the National Academy of Sciences writing a report on technology assessment. The title of my first published article says it all: "The Numerical Solution of Ill-Conditioned Linear Systems." I was, in short, a real geek.

Although I eventually turned my attention to the law, I could never shake that original passion. And, as it turns out, it captured the imagination of our President, too. When he became my main research assistant as a first-year law student back in 1989, we worked together on an article – “The Curvature of Constitutional Space” – for the Harvard Law Review. The subtitle was “What Lawyers Can Learn From Modern Physics.”  And I can report – though this will come as no surprise to you – that even back then, Barack Obama showed enormous scientific curiosity, a voracious appetite for truth, and a need to cut through complexity without oversimplifying it.

That impressed me. And it brought us closer. His interests matched my own lifelong search for fact – for finding the truth of the matter, whether in math, physics, or, yes, even the law. Indeed, I believe one of the greatest threats to progress is the casual, even contemptuous attitude toward reality that some in positions of power have at times displayed – an attitude that has occasionally bred a brazen willingness to censor and manipulate evidence for political ends. I am deeply grateful to serve a President and an administration that has respect for evidence-based reality.  And I’m delighted to address an audience in which I know that respect is shared.

In recalling my flirtations with the hard sciences, I'm reminded of a story told by one of the pioneers of computer theory and artificial intelligence, the late Joseph Weizenbaum of MIT. Joe described to me how he once gathered a group of Nobel Laureates to ask about the nature of knowledge. They all claimed to believe in the hard sciences only, none of that soft stuff that passes for understanding. Unconvinced, he probed deeper. “How many of you,” he asked, “believe that, a century from now, we'll all still be convinced by Einstein's famous formula, E = MC2.” Of the dozen or so present, just three raised their hands. And then he asked them how many of them believed that, a century from now, we'd all still be convinced that the road to hell is paved with good intentions. Every hand shot up at once. “See,” he said, “you believe in soft science after all.”

I tell this story because it helps underscore the misleading dichotomy between categories of scientific understanding. Knowledge comes in lots of flavors.  Some lend themselves to straightforward quantification in hard numbers.  Others are best expressed in geometric patterns and topological structures.  Sometimes we need to be creative about measuring what might be called “soft variables,” parameters that point to phenomena that aren’t as easy to locate as points on a numerical graph, phenomena like how people feel they are being treated by the institutions of their government.  But what ultimately matters isn’t the form in which we seek to measure and document experience. What matters is that we observe the canons of scientific method in recording empirical truth as we find it, not as we wish it to be. And that’s true whether we’re engaged in quantum physics or sociobiology, in the operations of particle accelerators or in the functioning of our system of justice. 

Since the day President Johnson convened the historic Presidential Commission on Law Enforcement and Administration of Justice in 1967 – the Commission that led to the creation of the National Institute of Justice – you have been at the forefront of searching out verifiable patterns in the operations of law and justice that have eluded others. You've never feared those "soft variables.” You've embraced them.

And it is that fusion of law, justice, and the age-old scientific method in pursuit of verifiable, even if not easily verifiable, truth – that has made me, as you can tell, so excited about being here. But there's something else, too – or, maybe I should say, someone else.

This April, I felt honored to be elected as the 1,001st living member of the 267-year old American Philosophical Society, which  Benjamin Franklin founded in 1743.  The mission of that society is to “promote useful knowledge." Those words express more than a platitude.  They embody   a distinctly American philosophy that evokes the spirit of its Founders and, in particular, of its most scientifically famous Founder, a visionary whose sense of the world, I’ve come to believe, best  embodies the spirit of the National Institute of Justice.

Franklin learned from everyone – the Iroquois, the French, the British, and everyone in between.  With his discoveries, he often saw what was invisible to others – and he proceeded to reveal what he learned not for personal gain but for the benefit of his fellow human beings. Consider the immortal story we all know – of a bespectacled Ben snatching lightning from the sky with nothing more than a kite, a key, and a Leyden jar to collect the mysterious charge.

It may seem an overstatement to conclude, with the great historian of science I. Bernard Cohen, that Franklin’s experiments with lightning revealed truths “of the same fundamental importance to physical science as Newton's law of conservation of momentum.”  But if we turn back the clock  258 years to this very month– we can begin to appreciate that Franklin was not playing with fire in June 1752 merely to satisfy his curiosity.

By revealing that lightning was electrical current – and that it could be tamed with a rod  – Franklin, according to one biographer, “conquered one of nature's most terrifying dangers... Few scientific discoveries have of such immediate service to humanity.”  Before Franklin tackled the problem, lightning regularly set fires to homes, churches, and buildings and struck down men, women, and children every day. He thus conducted his kite experiment, as he conducted all experiments, with an immediately useful application in mind: solving a deadly mystery that rendered life more precarious – one might even say less just.  Think of the metaphor we still use to describe processes, whether of nature or of human institutions, that strike without rhyme or reason,: “like being struck by lightning,” – an image some Supreme Court Justices have used to illustrate the constitutional infirmities of systems for meting out punishment that we have failed to tame with criteria to guarantee consistent and predictable application. 

 Franklin, who regularly turned down the offer of patents and other material rewards for his work of discovery, sought not credit but the immediate and material improvement of the human condition. You, too, put your trust not in owning knowledge, but in sharing it in pursuit of sound, evidence-based public policy. What Franklin once wrote in a letter to a friend, “What signifies Philosophy that does not apply to some Use?,”  could equally be said of your research here at NIJ.

Indeed, like so many of you, Franklin was fundamentally restless until he was able to fuse his passion for measurement, discovery, and explanation with his conviction that there was no higher calling than public service. And after his most famous experiment, he turned almost exclusively to that calling. He founded a university that would train ordinary citizens to become extraordinary. He invented the first U.S. hospitals to pool doctors for the public health. He launched our nation’s first philanthropic organizations.

It wasn’t long before he developed a political philosophy of pragmatism – of finding out what worked and relying on empirical results in the name of good government. This sentiment was the midwife to the birth of our nation and its Constitution and it was, according to his biographer Walter Isaacson, a turning point for public policy everywhere. “Franklin,” he wrote, applied "his scientific style of reasoning – experimental, pragmatic – not only to nature, but also to public affairs. The scientist and the statesman would henceforth be interwoven, each strand reinforcing the other.”

The take-away lesson for me is how Franklin, as the father of our nation's enlightenment tradition, instilled in our history and culture the great American faith in “knowledge harnessed to progress” – a faith that has set the National Institute of Justice apart since its founding.

Now, I'm sure you're all wondering what any of this has to do with Access to Justice. Everything! For one, Franklin’s great-great-great-grandfather was known, believe it or not, for his pioneering legal advocacy on behalf of poor farmers who could not afford fair access to England's justice system in their struggles against aristocracy!
But there is something far more fundamental than this rhetorically convenient connection anecdotally linking Franklin’s ancestry with our nation's commitment to the words etched into the façade of our nation's highest court – “equal justice under law.” It is, in short, about calling forth that American faith in knowledge harnessed to progress – but not before we call forth the knowledge itself.

All of you are familiar with what we do know about the access to justice problem.  We know, and have for some time, that public defenders are grossly understaffed, underfunded, and overworked. Caseloads are often 5 to 6 times that of the ceiling set by the National Advisory Commission on Criminal Justice, ranging from 500 to 900 felony cases and over 2,000 misdemeanors per defender per year. In 2007, some defenders in New Orleans averaged 19,000 cases a year, allowing an average of just seven minutes per case – a mere seven minutes to talk to a lawyer about a life-altering decision.

 And we all know, as evidenced by the 254 people in the United States who have been exonerated, including 17 who served time on death row, there are not enough good lawyers out there doing the necessary work of justice.  As my judicial hero and late friend Justice Brennan once said, and as I know you all believe,  “We must remember that society's interest is equally that the innocent shall not suffer, and not alone that the guilty shall not escape.” 
 
The situation is no less dire in civil cases, including those that involve life-altering matters like deportation, loss of child custody, and eviction. Although our Supreme Court has not held that indigents in such proceedings are entitled to be represented by counsel at public expense, no one doubts that those who cannot afford counsel in proceedings touching such momentous matters are at a potentially ruinous disadvantage.

The truth is that, as a nation, we face nothing short of a justice “crisis.” It is a crisis both acute and chronic, affecting not just the poor but the middle class. The situation we face is unconscionable. It’s why the President and Attorney General created the Access to Justice Initiative that I lead. And it’s why we will not rest until we have made measurable and sustainable progress.

But to make that progress – and to do so across the board – we must first acknowledge that what we do know is far outweighed by what we don't know. There is a vicious cycle – to demonstrate the need for funding, we must demonstrate the magnitude of what is needed and point to the results we expect to achieve through our studies and the implementation of their conclusions.  But to do so, we could sorely use the results of the very studies for which we seek needed funds. 

Too few studies have dealt with public defender services or prosecutors. In fact, nearly the whole court system process is utterly lacking in research. We're aware of this. You're aware of this. And so, too, are President Obama and Attorney General Holder. In fact, I'm proud to announce for the first time today that we will be working in close collaboration with NIJ to issue a new grant solicitation in Fiscal Year 2011 for access-to-justice related research.

But what kind of research, exactly, do we need? Or, more to the point, what kind of research will help those who need us? It is our strong belief that only holistic, multidisciplinary efforts are likely to be effective at closing the justice gap in this country – an approach that we call “person-centered” rather than “problem centered”. But “only” in that sentence is misleading, for there are so many,  many  possibilities.

We can, for example, better match distinct areas of behavioral science – of cascade theory, of nudge theory, of tipping point theory – which, by the way, Franklin mastered two and a half centuries before Malcolm Gladwell – with nearly every open question facing the criminal justice system.  

You pioneered the long-term study of the connection between drug use and crime – filling an empirical vacuum that led to innovative, holistic programs and better laws. You performed long-term research on crime prevention in Hartford in the 1970s and filled another empirical vacuum that led to the modern-day community-policing model.

Although not many of the studies you’ve supported over the years have focused on prosecutors, indigent defense, or other aspects of the court system, the methods you’ve employed are fully applicable to these new realms of research.  I am asking you to take the same rigor, the same curiosity, and expand your research to look at the comparative costs and benefits of some of the innovative diversion programs that OJP supports, at the efficacy and savings engendered by prevention efforts, both in juvenile and adult systems, or other paradigms that go beyond the classic cops and corrections model of arrest, conviction, and long-term incarceration.

As many of you know, reforming indigent defense is a top priority for Attorney General Eric Holder, for Assistant Attorney General Laurie Robinson, and for the mission of my Access to Justice Initiative.  Currently, public defenders are hamstrung by a lack of research that shows not only that good defenders are necessary to guard against injustice, but also to examine what we strongly suspect is true: good defenders, appointed early in the case, can create significant savings in the criminal justice system. Empirical study either verifying or falsifying that hypothesis would constitute research in pursuit of the highest goals that we all share –research that could potentially transform an entire field, and, in the end, help narrow the gap between our aspirations to justice and the justice we actually deliver to our citizens.

There are endless opportunities – and I would urge you to get in touch with me with your ideas; my team and I would love to discuss them with you and to pursue those that seem most promising.  And if you’re in need of some inspiration, I would urge you to ask your colleagues about NIJ’s recently funded study of the Hawaii HOPE program, an innovative probation and parole initiative that calls for the delivery of “swift and certain” punishment when a probationer violates the conditions of probation.  That research has shown that the swift response does more than un-clog the system. It improves the perception that the sanction is fair. The immediacy, it turns out, is a vital tool in shaping behavior.  And after a year in operation, program participants were – get this – found to be 55 percent less likely to be arrested for a new crime and 72 percent less likely to use drugs. That’s an incredible finding. And it’s exactly the kind of knowledge we need – and need now.

The fact is that for four decades, NIJ has been ahead of the curve on nearly every emerging critical issue concerning our justice system. And, particularly with the new grant solicitation, I am hopeful that access to justice will be no exception; that you will build on what you have done best to further what we now need most.

After all, although it sounds like a cliché, a great deal comes down to being smart about criminal and civil justice rather than just being "tough" to prove a point. We need the help of all of you to think more creatively and holistically about the criminal justice system – and about the larger legal system, criminal and civil, in which it is embedded. We need your help to change the way we think so that we can move forward in resolving an urgent, persistent problem that has long plagued our people.

I'm reminded in closing of Justice Holmes' immortal dissent in Abrams v. U.S. “Truth,” he wrote, “is the only ground upon which [man's] wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.”

In that spirit, I ask each of you today – for this cannot wait another day – to pursue understanding through systematic study and experimentation, and to do it with ever greater zeal in the search for justice.  Only by seeking more perfect knowledge can we build a more perfect union.

 

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