Thank you, Jim [Coleman], for that warm welcome. It’s an honor to be with you today and to salute the great work that the North Carolina Advocates for Justice supports and inspires. For nearly half a century, this organization’s leadership has been working to protect the rights of all citizens, to improve public understanding of our legal system, and to help attorneys across this state develop and enhance their skills.
This organization also serves as a meeting ground for North Carolina’s legal community to consider the challenges faced by every member of our profession and to discuss the responsibilities that we all share – responsibilities to protect our nation’s security, its interests, and its values.
This afternoon, I’m pleased to be part of the conversation. And I’m grateful for this opportunity to tell you all, in person, how much I appreciate your commitment to the cause of justice and to the promise of equal justice.
I’m here today to discuss our shared obligation, and opportunity, to fulfill this promise and to talk about the unprecedented challenges that – together – we can, and must, overcome.
Like many of you, I am proud to serve our nation’s criminal justice system, and I have great faith in its integrity and its effectiveness. While I believe this system is worthy of praise, I also recognize that it is not without problems. And it is time to face, address, and solve these problems.
Nearly half a century has passed since the Supreme Court’s decision in Gideon v. Wainwright. The Court followed with other decisions recognizing the right to counsel in juvenile and misdemeanor cases. Today, despite the decades that have gone by, these cases have yet to be fully translated into reality. Today, the Sixth Amendment right to counsel is, quite simply, not a right of all.
But you already know this – especially the judges, prosecutors, plaintiffs’ attorneys and, especially, the members of the criminal defense bar who are here. Many of you have reviewed the most recent reports outlining gaps in funding and services. Or you’ve read heartbreaking news stories of justice delayed and, in some cases, denied. And some of you have learned this truth in the hardest of ways – by experiencing it on the ground.
You’ve seen how, in too many communities and counties across and beyond North Carolina, some people accused of crimes – including juveniles – may never have a lawyer, either entirely or during a critical stage of the proceedings against them. In fact, juveniles sometimes waive their right to counsel without ever speaking to an attorney to help them understand what they are giving up. And too many of our courts accept these waivers.
When lawyers are provided to the poor, too often they cannot represent their clients properly due to insufficient resources and inadequate oversight – that is, without the building blocks of a well-functioning public defender system, the type of system set forth in the ten principles of the American Bar Association and the National Juvenile Defender Center.
Unfortunately, the challenges facing North Carolina’s public defender program – a lack of staff and increasingly limited resources – are the rule, not the exception. Across the country, too many public defenders are carrying huge caseloads that make it difficult, if not impossible, for them to fulfill their legal and ethical responsibilities to their clients. Lawyers buried under these caseloads often can’t interview their clients properly or conduct adequate fact investigations.
In Raleigh, we’ve seen the case of a death row inmate whose attorney did not interview any witnesses, file any motions, seek an evaluation of his client, gain access to the prosecutor's file, or conduct any background investigation until very shortly before trial. And the problem is about more than just resources. In some parts of the country, the primary institutions for the delivery of defense to the poor – I’m talking about basic public defender systems – simply do not exist.
Shining a light on these problems is important – and is often an impetus for reform. That’s been the case here in North Carolina. In the three years since your state auditor found that North Carolina was, “falling short related to its responsibilities for providing independent, competent and adequate legal defense for the poor," lawyers across the state, and across practice areas, have been calling for systemic change. You’ve also been calling on state lawmakers to make indigent defense services, even in these hard economic times, a funding priority.
Just as surely as you must keep this up, we must all acknowledge that resources, alone, are not enough. We already know that, when the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals. But to most effectively demonstrate the need for additional funding, we must, first, clearly demonstrate the scope of what is needed and what we expect to achieve. Hard data will help transform the field and improve our capacity, not only to deliver justice but also to ensure the integrity of our justice system.
As a prosecutor and former judge, I know that a fair criminal justice system, and our faith in it, depends on effective representation on both sides. And I recognize that some may perceive the goals of those who represent our federal, state, and local governments and the goals of those who represent the accused as forever at odds. I reject that premise. Although they may stand on different sides of an argument, both the prosecution and the defense have a role, and a responsbility, in strengthening our justice system.
So, where do we go from here?
Of course, I’m not the only person in this room who’s been grappling with this question for some time. Here in North Carolina, you have seen some difficult challenges. You’ve also made meaningful progress – especially since 2000, when the state Indigent Defense Services agency was established. But there’s more work to be done. And that’s true all across the country.
It’s no exaggeration to say that we are now dealing with a nationwide crisis in our criminal defense system. In the last year, I have thought about, studied, and discussed this crisis a great deal. What I’ve learned, and what I know for sure, is that there are no easy solutions. No single institution – not the federal government, not the Department of Justice, not a single state legislature, state bar or professional organization – can solve the problem on its own. Progress can only come from a sustained commitment to collaboration with diverse partners. We need government and private sector leaders to work together. And we need lawyers and policymakers to communicate more regularly about what we’re up against.
I urge each of you – in fact, I’m counting on each of you – to bring more people into your discussions about our indigent defense crisis. Don’t just turn to fellow attorneys and judges. Talk to local officials, state budget officers, and business and community leaders. The right to counsel is the right of every citizen – and it must be the concern of every citizen and especially every person who works on behalf of the public good and in the pursuit of justice.
As I’ve said repeatedly over the last year, I believe that addressing our indigent defense crisis must have three areas of focus.
First, we must commit to an ongoing dialogue about these issues – with partners at the federal, state, and local levels, both within and outside of government. By sharing information and inviting fresh ideas and perspectives, I believe we can build on the good work that has gone into developing model standards for our public defense systems.
Second, we must raise awareness about what we’re facing. As Americans understand how some of their fellow citizens experience the criminal justice system, they will be shocked and angered – feelings I hope would compel them to become advocates for change and allies in our work.
Third, we must expand the role of the public defender. We must encourage defenders to seek solutions beyond our courtrooms and ensure that they’re involved in shaping policies that will empower the communities they serve. I’m committed to making sure that public defenders are at the table when we meet with other stakeholders in the criminal justice system. And I’m determined to try to make sure that every state has a public defender program. As part of this work, I’ve pledged to meet regularly with members of the criminal defense bar. And today’s convention is just a part of fulfilling that promise.
I have also charged the Justice Department’s leadership with calling on our components to include members of the public defense system in a range of meetings. We will also involve defenders in conferences, application review panels, and other venues where a public defense perspective can be valuable.
Let me assure you all today that this is not a passing issue for the Justice Department. I have asked the entire Department to focus on indigent defense issues with a sense of urgency and a commitment to developing and implementing the solutions we need. As many of you know, we recently took an historic step to make access to justice a permanent part of the Department’s work, with a focused effort by our leadership offices to ensure that this issue gets the attention it deserves.
In March, the Department of Justice launched a landmark Access to Justice Initiative, led by the eminent Harvard Law Professor Larry Tribe. The initiative was established to fulfill our responsibility to enhance the fairness and integrity of our legal system, and it reflects an historic assurance that expanding access to legal services is, and will continue to be, a national priority. And I’m pleased to report that this new office has hit the ground running with an ambitious agenda.
The Access team has met with prominent officials across the legal profession, from Chief Judge Lippman of New York to circuit judges on both coasts to the White House Domestic Policy Council, in order to form partnerships that will begin to open the doors of justice to all – regardless of income. Professor Tribe recently participated in the Constitutional Right to Counsel Summit hosted by Chairman Conyers of the House Judiciary Committee. And, several days ago, the office announced that it had secured a joint grant solicitation with the National Institute of Justice to fund access-to-justice-related research, a first – and necessary – step toward a more just America. With the same dedication that many of you showed in calling for such an initiative, I have no doubt that many of the attorneys and advocates gathered in this room will contribute to its success.
Your partnership is, and will continue to be, critical to the Justice Department’s work. In this time of growing needs and demands and of increasingly limited resources, meeting our responsibilities – as servants and stewards of our nation’s justice system – has never been more difficult. But I have every expectation that, together, we can make extraordinary – and much-needed – progress.
I believe our criminal defense system can, and will, become a source of tremendous national pride. I look forward to working with you all in achieving this goal. And I am grateful for your guidance, your engagement, and for your commitment. But we all need to do more. As lawyers it is our obligation to make real the promise of a system where all are adequately represented. I call on all of you to partner with me in this effort. Together, we will surely succeed and get closer to the realization of the more perfect union we all seek.