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Remarks as Prepared For Delivery by Acting Senior Counselor for Access to Justice Deborah Leff at the 19th Annual National Conference of CJA Panel Attorney District Representatives
Alexandria, Va ~ Saturday, March 1, 2014

Let me begin by thanking Cait Clark, Chief of the Defender Services Office of the Administrative Office of the Courts, who’s done such a fine job during a very challenging time.  I also want to acknowledge the Judges on the Defender Services Committee who are here with us today.  Judges Blake, Blackburn, Kessler, Tinder, Feldman, and Melgren have all done so much to support and strengthen the representation of indigent defendants.  So I was very pleased to see the budget levels restored for the Federal Defenders.  As the Attorney General noted last summer, those cuts threatened the integrity of our criminal justice system and the ability to provide fair outcomes and guarantee the constitutionally protected rights of every criminal defendant.  Their restoration was essential.

It was also good to see the pay rate of indigent defense panel attorneys restored last month to pre-sequester levels with an added 1 % employment cost index adjustment.  No one is in this room today because you envisioned a lucrative career in indigent defense work.  Trust me.  I know it’s not about the money, and the work is rewarding in many other ways.  But this was an important step.

I come to you today as a proud member of the US Department of Justice.  I know that most of you are aware of the Department’s new charging policies announced by the Attorney General; the force he is putting behind the “Smart on Crime” initiative; his efforts on beefing up pretrial justice, where far too many people are locked up before any determination of innocence or guilt, and far too often, without a data-based determination of the danger they may pose to the community.  And he has also put tremendous resources into re-entry, emphasizing the need to make sure that prisoners rejoining society have the necessary skills to be able to put their lives together once they are released, to obtain jobs and support their families.  In fact, every US Attorney’s office has now designated a Prevention and Re-entry Coordinator.  These coordinators are charged with leading and tracking US Attorney efforts to prevent violent crime and to help former prisoners reestablish stable lives and break the cycle of incarceration.  These efforts by US Attorneys’ offices may include, for example, reaching out to potential employers to explain the benefits and opportunities of hiring former offenders.

In addition, this Attorney General is deeply committed to indigent defense, and has taken groundbreaking, historic actions to demonstrate that commitment.  He understands the critical partnership of our hybrid system – the importance of a fully funded program with excellent federal defenders and excellent panels of private attorneys giving quality representation to indigent clients. 

As folks where I work note, we are not the Department of Prosecution.  We are the Department of Justice.  And etched on the walls of the fifth floor of the Robert F. Kennedy Building, in the Attorney General’s rotunda, are these important words:  “The United States Wins its Point Whenever Justice is Done Its Citizens in the Courts.”

I’m especially pleased to speak to you today, as the 50th Anniversary of the US Supreme Court decision in Gideon v. Wainwright draws to a close.

The fundamental value and importance of an attorney to maintaining a just America has long been recognized.  Even before the Supreme Court issued its decision in Gideon, President John F. Kennedy, in his 1963 State of the Union address, said, “[W]e need to strengthen our Nation by protecting the basic rights of its citizens: --The right to competent counsel must be assured to every man accused of crime in Federal court, regardless of his means.”

And a few months later, the Supreme Court did guarantee that right.  I suspect I’m not the only person in this room who went into law because as a kid, I read the late Anthony Lewis’ book, Gideon’s Trumpet.  I was inspired by the story of one man who fought so hard for justice … and fully aware that having a lawyer could mean the difference between liberty and a life behind bars, the difference between justice and injustice. It’s the work that the people in this room do.

Gideon promised a future of greater fairness.  The words of Justice Black, in writing the Court’s opinion, were clear:   “In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.  This seems to us to be an obvious truth.”

The decision was a great victory.  But it was not a complete one.  For the reality is that in cities, counties, and states throughout this country, there is what our Attorney General has called a “crisis” in indigent defense. 

You may not have an easy life as panel attorneys.  But you are far better resourced than most public defenders in this country.  We know from a 2011 Justice Policy Institute report that only 21 percent of reporting state public defender systems and only 27 percent of county-based public defender offices have enough attorneys to meet caseload guidelines.   The majority of county-based public defender offices do not have caseload limits, and they don’t have the authority to refuse cases when they are assigned more than they can competently and responsibly handle.   Lawyers’ caseloads go unchecked and their work unsupervised.   Those caseloads can be so immense – sometimes totaling more than 700 felony cases a year per attorney – that the pressure to get defendants to plead guilty and get off the court dockets is enormous.   In some places, public defenders are so poorly paid that one hears stories:  the public defender who works part-time as a Starbucks barista.  The public defender delivering pizza.

Much of the American public thinks that every poor person has access to a public defender by right.  But they’re mistaken.  Because in non-federal systems, public defenders are a small portion of those providing indigent defense in this country.  Most providers are private attorneys.  And most of them agree to take on an unlimited number of cases for a flat fee.  Hire an investigator to look into the facts of the case?  Well, that reduces income to the lawyer.  Spend all the time that’s needed on a case?  Well, that’s simply impossible given the caseload.  The result:  accused people don’t have the defense they’ve been promised by Gideon.  Instead, we talk about “meet and plead” or such lovely rhymes as “plea and flee”.  It’s fast.  It’s economical.  But it is an obvious truth that seven minutes with a lawyer, that absolutely no investigation, that pressure to plead guilty when the facts are unexplored –is not the assurance of a fair trial that Gideon promised.  

That’s one reason why President Obama and the Attorney General created the Access to Justice Initiative, where I work, in 2010.  We’re small, and we’re feisty, and we are fortunate to work for an Attorney General who has a deep commitment to our efforts to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.

For those of you who are unfamiliar with ATJ, as we call ourselves, let me give you a brief introduction.  We work within the Department of Justice, but we also work across federal agencies and with state, local, and tribal justice system stakeholders to increase access to counsel and legal assistance, and to improve the justice delivery systems that serve people who are unable to afford lawyers.

We work on indigent defense, and on issues such as right to counsel, clemency, and funding, all of which I’ll discuss in a moment.  We work on juvenile issues, including efforts to make sure that young people have access to counsel at every stage of juvenile proceedings.

We also work on tribal justice, delivering trial advocacy courses to improve the trial skills of defenders, prosecutors, and judges who appear in tribal courts. 

About half of our work falls on the civil side.  This country may not have civil Gideon, but we know that a lawyer can make a huge difference to a person who is facing the loss of her home, or the loss of custody of her children, or other life-altering events.  More than 50 million Americans qualify for federally-funded legal assistance.  But over half of the people who seek legal aid are turned away because available funding is so low.  Getting a fair shake from the system is simply out of reach for millions of Americans who are poor.

The Access to Justice Initiative is working to change that.  We’ve set up something called the Legal Aid Interagency Roundtable, and of course, since we’re the government, we’ve given it an acronym:  LAIR.  LAIR, which includes 17 federal agencies, works to encourage grantmaking to support legal aid where such efforts will better fulfill the purpose of government safety-net programs. 

Let me give you one example:  Reentry.  We know that about 700,000 people are released from state and federal prisons each year, and another 12 million annually cycle through local jails.  And those people – often your clients – can face serious barriers when they try to get a job, or sign a lease.  Legal aid can make a huge difference in their lives.  It can correct inaccurate criminal records, such as when a record doesn’t reflect that the felony listed was reduced to a misdemeanor or the record wrongly includes an arrest that never led to conviction.  It can help in reinstating a revoked or suspended driver’s license, making it possible for a person to commute to a job.  It can help modify child support orders to more realistic payment obligations.  And it can untangle fees and fines imposed at sentencing to pay for court costs, to increase the likelihood of payment.  Legal aid helps those who have paid their debt to society get back on their feet, sustain a livelihood, and remain a productive member of society, rather than returning to prison.

It’s all about access to counsel.  That’s what we do.

Of course, we’re not the only part of the Department of Justice that cares about and focuses on these issues.  The Office of Justice Programs made nearly $7 million in grants last year to improve legal services for the poor.  That sum included a $1 million grant to Gideon’s Promise, a group that partners with public defender offices to build a community of attorneys committed to indigent defense reforms.  The grant will provide 25 new attorneys and establish training and leadership development programs for public defenders.

Nearly $2 million in grants were given for a program titled “Answering Gideon’s Call,” which works to improve the effectiveness of right to counsel services.  Another part of the Office of Justice Programs, the National Institute of Justice, recently funded three research projects that are currently underway:  an evaluation of holistic defense methods, an evaluation of the factors that affect juveniles’ waiver of counsel, and an examination of the challenges of representing indigent defendants with mental health disorders.

But it’s not all about the money.  It’s also having a voice at the Justice Department to speak out for – well – justice.  And that voice was heard loudly in an important filing last summer in the federal case of Wilbur v. City of Mount Vernon, where the Access to Justice Initiative and the Civil Rights Division jointly filed a Statement of Interest – a filing that Norman Reimer, executive director of the National Association of Criminal Defense Lawyers called “an historic step” “with profound implications not only for indigent defense but for the defense function more generally.”

Wilbur was a class action lawsuit which alleged that accused defendants were systematically denied effective assistance of counsel.  The DOJ Statement of Interest took no position on the merits of the case.  But it asked that if the United States District Court found constitutional violations, the Court consider as part of its remedy workload controls for public defense providers and the appointment of an independent monitor to ensure compliance.  

The filing made clear that caseload limits are not enough.  Workload limits – which take into account all of the factors affecting a public defender’s ability to adequately represent clients such as the complexity of the case, the defender’s skill and experience, and support services available to her – are needed.

In December, the District Court issued its opinion, finding a systematic deprivation of the right to assistance of counsel.  The Court found there was almost no opportunity for the accused to confer with counsel in a confidential setting.  “In general,” Judge Robert Lasnik wrote, “counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.  The appointment of counsel was, for the most part little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant.”  And the Court found that the problem was the “natural, foreseeable, and expected result” of the enormous caseloads attorneys were juggling, noting that the services offered to indigent clients amounted to little more than a “meet and plead” system.”  Sound familiar?  The District Court issued an injunction in favor of the plaintiffs that required the defendants to hire a part-time public defender supervisor tasked with monitoring and reporting on the defendants’ delivery of indigent defense representation.  And that supervisor was appointed just 10 days ago.  She is a former public defender from King County in Washington State.

By the way, your work was not unrecognized by the District Court.  In fact, footnote 9 in the opinion speaks about what many members of Congress termed an underfunding of public defense at the federal level and the cut in pay to panel attorneys.

The Court went on to state that the case payment system in these Washington counties gave lawyers “every incentive to close cases as quickly as possible and to minimize the time spent on each case.”  Justice demands more.

Before closing, I want to touch on an item that’s been in the news recently.   Many of you will recall that in late January, Deputy Attorney General James Cole spoke to the New York State Bar Association, expressing his concern about low-level, nonviolent drug offenders who are in prison today, with a sentence of decades or life, who would likely have received a substantially lower sentence if convicted of the same offenses today.  There’s a fundamental issue of fairness here.

The Deputy Attorney General wants to ensure that individuals like the eight whose sentences the President commuted in December have access to attorneys to help them present their cases.  He has called on the bar to assist potential candidates for executive clemency.  Some of those clients may be your clients … people you represented who need your help again.  And I know that you won’t be surprised to hear that lawyers are responding with an effort to develop a process through which inmates seeking clemency would have access to pro bono counsel to assist them in preparing their cases.  Stay tuned for more information.

I want to close by returning to Gideon and by quoting the words of US District Judge Lasnik, who wrote the opinion in Wilbur

“It has been fifty years since the United States Supreme Court first recognized that the accused has a right to the assistance of counsel for his defense in criminal prosecutions and that the state courts must appoint counsel for indigent defendants who cannot afford to retain their own lawyer.  The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.”

This country must listen to the clarion call for justice, and all of us must do what we can to raise our voices for the rights we protect.  Thank you for all you do.  Please continue, and please keep sounding that trumpet.  Its compelling tones are essential for all of us.

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