UN General Assembly Adopts Principles and Guidelines on Indigent Defense

February 12, 2013

On January 7, 2013, the Access to Justice Initiative brought together about twenty indigent defense experts to brief them on the newly adopted United Nations Principles & Guidelines on Access to Legal Aid in Criminal Justice Systems, and to seek their practical input as the UN and its member states begin to use the Principles & Guidelines to guide real-world reforms.

The UN General Assembly formally adopted the Principles & Guidelines in December 2012, making it the first international legal document on indigent defense.  The Principles & Guidelines emerged through the efforts of non-governmental organizations and member states over several years, and the Department of Justice actively supported the Principles & Guidelines throughout its adoption process.  The Access to Justice Initiative helped to formulate the U.S. position on the document, which reflects many of the same values as the American Bar Association’s Ten Principles of a Public Defense Delivery System (PDF), which were adopted in 2002 for use by communities across the country in establishing and reforming defender systems.  Attorney General Holder and Acting Associate Attorney General West spoke in support of the Principles & Guidelines in their remarks at events around the opening of the 67th Session of the UN General Assembly. 

As Acting Associate Attorney General West stated:

 “…Establishing standards can be instrumental in raising the level of representation for defenders across the country…These comprehensive guidelines and principles can be effective tools in strengthening and expanding existing criminal legal aid systems throughout the world.”

As a secondary source of law, much like a U.S. Restatement of the Law, the Principles and Guidelines express a developing international consensus on the importance of effective legal aid systems in indigent defense:

  • First, the Principles & Guidelines provide a model for countries still at the beginning stages of developing public defense systems.  The document confirms that public defense providers must have the resources and independence to provide effective legal aid to all persons accused of crimes, regardless of economic or social status.  The Principles & Guidelines also acknowledge the need for flexibility – legal aid systems will develop in different countries in different ways. 
  • Second, the Principles & Guidelines demonstrate an international consensus to challenge all countries to achieve high standards in criminal defense.  As we in the United States continue to work to meet our own constitutional obligations to provide effective representation to criminal defendants, the values expressed in the Principles & Guidelines can inform and guide the efforts of U.S. advocates and policymakers. 

At the January 7 meeting, the Access to Justice Initiative convened a diverse group of U.S. indigent defense experts to discuss the Principles and Guidelines.  To begin a conversation on how U.S. criminal defense practitioners may use the Principles & Guidelines as a source of persuasive authority, the Director of the Local Human Rights Lawyering Project at American University’s Washington College of Law described their efforts to make the use of international human rights law in U.S. courts more common and accepted. 

In addition, the meeting was an opportunity for this community to contribute to the implementation of the Principles & Guidelines at the international level.  The Executive Director of the International Legal Foundation, which is contributing to a UN manual on early access to counsel, sought practical input from the experts in the room.  The participants provided insights from their own experiences on the meaning and implications of “early access” to counsel, suggested models for providing early access, and discussed obstacles that countries will face as they translate the Principles & Guidelines into practical reforms of their criminal defense systems. 

Participants agreed that the US experience in providing effective criminal defense – both successes and failures – offers valuable lessons to other countries at the early stages of developing their criminal defense systems.

 

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