Laurence H. Tribe, Senior Counselor for Access to Justice, Remarks to the 2010 Graduating Class of the University of Miami School of Law

As prepared for delivery.

President Shalala, Dean White, Members of the Class of 2010:

To you, and to all who made this day possible – your faculty, your friends, and, above all, your families – Congratulations!
It's a special pleasure to be delivering this commencement speech in Coral Gables. The last such speech I delivered was in considerably less friendly territory: I was addressing the NYU commencement two years ago. Because the usual Washington Square venue for that commencement was being reconstructed, the ceremony was held in the old Yankee Stadium. Seeing the 35,000 people in the stands, I couldn't resist confessing that I was an avid Red Sox fan. Not long after that, they destroyed the stadium. But they assured me there was no causal relationship between my speech and the wrecking ball.

Two other things make this occasion – and this honorary degree – particularly gratifying and humbling. The first is the truly remarkable individuals – Paul Farmer and Regina Benjamin – who are this spring’s other recipients of honorary degrees from the University of Miami.  Paul, Chairman of Harvard Medical School’s Department of Global Health and Social Medicine, is one of the world’s pioneers and visionaries in providing medical assistance to the poorest populations around the globe.  Regina, our nation's 18th Surgeon General, knows a little about a problem you may be familiar with here in Miami – hurricanes.  In 1998, when Hurricane Georges destroyed the rural health care clinic she started in Bayou La Batre, Louisiana, she made house calls until it was rebuilt. When Hurricane Katrina destroyed the clinic again seven years later, she mortgaged her own house to rebuild it.   And when a fire destroyed the rebuilt clinic the day before it was set to reopen, she sent out appeals across the country for aid – and they are building again.  How’s that for perseverance and downright stubbornness in the face of a challenge?

This is a uniquely moving occasion for me for another reason too. It’s my first graduation speech since a President I admire hugely, and an Attorney General I respect tremendously, selected me to lead the administration's new initiative in search of justice, a search that is at the heart of our national identity and that embodies the aspirations both President Obama and Attorney General Holder have repeatedly articulated.
My suite of offices in the Robert F. Kennedy Building, fondly known as “Main Justice” to those who work in it, isn’t either large or particularly impressive, and my fledgling legal staff is small. But there’s one thing that’s huge about our office: It’s the sign outside my door. It says, simply, “Access to Justice.” People who have visited me there have often paused to have their photographs taken – not with me, mind you, but with the sign on my door. Some, including some state and federal court judges, prosecutors and public defenders, and leaders of charitable organizations, have openly marveled that there is, at long last, such a sign somewhere in the Justice Department.

I’ve received almost nothing but supportive messages and emails since taking office, with the exception of an occasional email challenging - believe it or not - the constitutionality of having an initiative dedicated to this goal. “Isn’t the Justice Department about prosecuting wrongdoers in order to execute the laws of the nation?,” they ask. “The Constitution directs the President to ‘see to it that the laws are faithfully executed,’” they say. “Where in the Constitution does it say that anyone is entitled to justice?” “If you’re interested in justice, you should’ve gone to Divinity School, not Law School.”

Well, you went to law school, but I don’t think that means you had no interest in doing justice! Why did you come to law school? I know all the cynical answers, but I truly believe that many of you came here with justice very much in mind. And I’m not talking about justice only as a theory or as a remote aspiration. Many of you, I understand, have actually helped people navigate the shoals of bankruptcy or immigration or problems with affordable housing in clinics devoted specifically to those areas; others among you have worked with Florida’s Legal Services’ Community Justice Project, providing legal services directly to community organizations fighting for racial and economic justice. Others represented kids in foster care or indigent criminal defendants on appeal after receiving referrals from the Federal Public Defender. And some of you worked in this law school’s distinguished Health and Elder Law Clinic’s Haitian Temporary Protected Status Project, which just a week ago was honored with the Clinical Legal Education Association’s 2010 Award for Excellence – a truly remarkable achievement.

So it’s clear that helping people gain access to justice has been a major pursuit for many of you during your time here. But among the many lessons you’ll take with you from this place, one must surely be that law and justice are not synonymous. Law is a means. Justice is an end. And, all too often throughout world history and, sadly, our history as well, the law has been an instrument not of justice but of injustice. The law in the United States, once upon a time – not so very long ago, in the great sweep of history – denied freedom, even full personhood, to an entire race of human beings. For a full half century after the passage of the Fourteenth Amendment, our law denied full citizenship (including the right to vote) to an entire gender (over half the population) and our laws still deny full equality to many of our LGBT brothers and sisters.

But, as President Obama is fond of saying, we grow. We learn. With occasional steps backwards, we manage to evolve. He is fond of quoting the Constitution’s preamble: “. . . in order to form a more perfect Union.” We have elected a President who is committed to the repeal of “Don’t Ask, Don’t Tell” and of the Defense of Marriage Act. He has issued an executive order allowing partners to visit their ill loved ones in government hospitals.   And he has selected an Attorney General for whom the perennial deficiencies in indigent defense and the enormous gaps in legal services for the poor and middle class constitute not just a “problem” but a “crisis.”

And it’s about time. Frank Lee Smith was convicted in 1986 of raping and murdering an 8-year-old girl in Fort Lauderdale and sentenced to death. The good news is that DNA evidence decisively exonerated Smith and identified another man altogether as the rapist-murderer. The bad news is that the DNA testing wasn’t done until a blood sample was finally taken from Smith by the prosecution in the year 2000 – after Smith had died of cancer, having spent the preceding 14 years wrongfully incarcerated on Florida’s death row.

Smith's case is hardly unique. Of 250 DNA exonerations reported by The Innocence Project this February, the average time spent in prison before exoneration was almost 13 years. That's a total of 3,160 years of unjust imprisonment.  The reasons aren't hard to discover. Public defenders' offices are underfunded and understaffed. Their annual caseloads can range from 500 to 900 felony cases and over 2,000 misdemeanors, at least 5 to 6 times the ceilings set by the National Advisory Commission on Criminal Justice.   In 2007, some defenders in New Orleans averaged 19,000 cases a year, allowing an average of just 7 minutes per case.   Recent reports evaluating state public defense systems are replete with examples of defendants who have languished in jail for weeks, or even months, before counsel was appointed.  In one example, a 50-year-old woman in Mississippi charged with shoplifting merchandise worth $72 spent 11 months in jail before she was appointed counsel. Apart from the grotesque injustice, just think about the cost to the State of Mississippi!  An indigent New York woman charged with firearm possession says she was unable to contact counsel to seek a bail reduction when her husband depended on her for medical care. The charge against her was eventually dropped but, while she was detained, her husband died.

The situation is no less dire in civil cases, including those that involve life-altering matters like deportation, loss of child custody, or eviction. Even though the U.S. 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 serious disadvantage.  Thus it will come as no surprise that legally represented immigrants seeking asylum in the United States to avoid persecution and torture in their home countries win their claims at three times the rate of those who are legally unrepresented.  Imagine the plight of unaccompanied children, 8,000 of whom come to this country each year without a parent or guardian to watch over them and are then detained by immigration officials on the way to deportation. A majority of these kids have no legal assistance at all to help them navigate one of the most complex of all legal labyrinths.

The problems we face aren’t episodic but systemic. To qualify for federally-funded legal assistance, one must earn no more than 25 percent above the poverty level; more than 50 million Americans qualify by that criterion, but over half of those who qualify and seek assistance from the 137 principal federally-funded legal assistance programs must be turned away because the level of available funding is so low.

I know: the term “crisis” is overused. But, after reflecting on these examples and this data, can any of us doubt that, as a nation that promises “equal justice under law,” we are indeed experiencing a genuine crisis in access to justice? 

Happily, it’s not a crisis the Obama administration is ignoring. Full as the agenda is, the administration is committed to improving delivery of legal services and increasing access to justice for all our citizens. More than its predecessors, this government is committed to making justice an active verb. The president’s budget proposal for Fiscal 2011 includes more funds for legal services at the federal level and proposes to lift some of the restrictions that tie the hands of federally funded legal aid offices.

And I’m glad to report that States are also taking leadership roles in improving access to justice.  California recently enacted the Sargent Shriver Civil Counsel Act, which beginning next year will establish pilot programs to provide counsel at state expense to indigent civil litigants in cases involving basic human needs like housing and child custody.   A number of State Chief Justices – prominently including Ronald George of California, John Broderick of New Hampshire, and Margaret Marshall of Massachusetts – are leading efforts to assist litigants in state courts who increasingly cannot afford an attorney even when very important rights are at stake.  Similar efforts are taking root in federal courthouses, where attorneys staff help desks to assist individuals confronting bankruptcy, unfair lending practices, or employment discrimination.

The private bar is of course not immune to our changing economy or shielded from an obligation to meet the challenges it poses for access to justice.  Some of you may have heard that law firms aren’t hiring quite so many of you as they once were.  Still, many of you will begin your professional careers in law firms. But the law firm landscape is a changing one. I don’t mean to disillusion anybody here, but increasing numbers of clients in this economy have developed doubts about paying hundreds of dollars an hour for associates fresh out of law school. That in turn is leading to a fundamental shift in the way law firms are doing business, including a move away from automatic advancement for associates and toward a merits-based system that includes actual litigation experience as a major component.  With this shift comes an increased focus on pro bono work, and a more organized and coherent effort on the part of firms to develop their pro bono practice.  These pro bono projects offer young associates not only an opportunity to gain valuable courtroom and litigation experience, but also to participate directly in high-level negotiations that they would not otherwise have the opportunity to experience.

But the last thing I mean to suggest is that representing indigent clients pro bono or bringing impact litigation on their behalf is the only way (or always even the best way) to gain legal experience or to advance the cause of justice. Justice is a house of many mansions, and its gates of access are to be found in many places. There are many more than just “Twelve Gates to the City.”  Our Access to Justice Initiative, for example, whose mission includes a search for innovative solutions and unlikely alliances, has found points of entry in such surprising locations as medical clinics and emergency rooms, where over 130 medical-legal partnerships place students supervised by lawyers and other specialists at help desks situated in medical facilities to accept referrals directly from physicians. The mother who brings a severely asthmatic child to a hospital might need medicine for her baby but may need even more urgently a lawyer’s help in dealing with a landlord who won’t exterminate the mites in the carpet. And that lawyer could be one whose “day job” involves high-wire legal maneuvers involving condominium conversions or real estate insurance trusts.

Our Access to Justice office is examining the many perhaps unexpected ways in which justice might be advanced, brainstorming with others to find and create approaches worthy of encouraging and emulating, working to promote needed regulatory and legislative changes, exchanging ideas with our counterparts around the world, and trying to leave no stone unturned in confronting this enormous challenge.

I urge you to do your part in that great effort. And I know you’re fully capable of playing that role. In speaking to the folks who know your professional qualifications the best – your professors, your dean, and your president – I understand that you all are an impressive lot, at least as impressive as the classes who preceded you at this fine institution, and an inspiration for those who will follow you.  If history is any indication, the graduates in this audience are the future judges, mayors, members of the House and Senate, state and federal chief public defenders and prosecutors, leaders of prestigious national organizations of attorneys, innovative legal services lawyers, and civic and legal leaders of this community and others around the nation.  They are formidable footsteps that you follow as University of Miami graduates, but I’ve been assured – and I have no doubt – that you are more than up to the task.

Regardless of what professional path you choose, the cause of access to justice is equally yours.  The legal services lawyer and public defender have no more stake in that value than do the prosecutor, judge, or firm lawyer.  If you listen to the giants of the legal profession in this country, what you’ll hear them say is that the crisis in access to justice affects all of us, because it affects our entire legal system regardless of where we sit or stand.  Although on the surface the problems I’ve outlined today deal primarily with the plight of the poor and working class, I see them as but a canary in the coal mine of our justice system writ large.  New Hampshire Chief Justice Broderick believes that, if we continue on our “downward spiral,” soon the only litigants in our state courthouses will be criminal defendants and pro se litigants who cannot afford to take their business to expensive private judges and mediators.

If you ask the firm lawyer who for months and even years cannot get a courtroom for a trial because of budget cuts, furloughs, and bulging criminal and family-law dockets, the complaints you’ll hear about a broken system will be just as forceful as those you’ll hear from the over-extended public defender or legal aid lawyer.  You have necessarily chosen to take on the cause of access to justice by the mere fact of becoming a lawyer, regardless of who writes your checks or how big they are. 

Rightly understood, justice isn’t a zero-sum game. That’s why my office in the Justice Department is working to forge alliances among prosecutors, corrections officials, and defenders throughout the country.  In the end, when we broaden the access routes to the mighty torrent of justice, we widen them for everyone. My vision is in some ways the opposite of what has been described as the trickle-down theory – the theory that, if we help those at the top, those at the bottom will eventually benefit from the fallout. I’ve never been convinced about that. But I am convinced that, if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to law are lowered. The challenge is to do that in difficult times, when so much else competes for your attention.

Thankfully, you have the will to accept that challenge. And now, by virtue of your presence here, you have the training to meet it. I think that I speak on behalf of your professors, administrators, friends, and family when I say that I look forward to watching you engage. May you all live fulfilling lives in the great calling we share. May you make your lives part of the great arc of history – the arc that, as Martin Luther King once said, bends toward justice.