As prepared for delivery.
I would like to thank Warsaw University and the American Law Center for inviting me here to speak.
But before I say another word, I want to express my deep condolences to you and your fellow countrymen and -women for the tragic and terrible loss that you suffered last month. Please know that the Obama administration, the Justice Department, and our nation join you in mourning the loss of so many of your outstanding leaders.
Anais Nin, the famous French author, once said that “people living deeply have no fear of death.” The people on that airplane lived their lives deeply and for the betterment of all of Poland and in the service of mankind, helping to shape your nation’s inspiring democratic transformation. I consider it a privilege to speak to you in this, the most difficult of times for you, about how we can work together to use the law to improve the lives of people in my country and yours.
I must say that, despite the fact that I live on the other side of the world, I feel very much at home standing here talking to you. I have spent more than 40 years of my life as a law professor at Harvard University, teaching law to students just like you. But, the truth is that’s just one small piece of it. When my plane landed in Warsaw on Tuesday, it was the first time in my life that I’d felt as though I’d returned to the homeland of my ancestors. My father and all four of my grandparents were born in towns around Minsk which historically have been under the rule of more nation-states than I can count – and the victims of more slaughters than I can bring myself to imagine. My relatives lived and died in the Warsaw ghetto, and some perished at Auschwitz. The truth is that, although I am and feel very much an American, my commitment to justice, particularly for the most vulnerable and persecuted among us – a commitment that has formed much of my life’s work and which now forms the basis of my work for the United States government – has its roots right here in Poland.
And so it is a source of special pride to me that I have finally returned, and am addressing you today not as a professor but as the first Senior Counselor for Access to Justice at the U.S. Justice Department. This is a role I only recently assumed, having been asked to take on this challenge by two leaders for whom I have the greatest admiration: Attorney General Eric Holder and one of my own former law students, President Barack Obama. Since March 1, I’ve been leading their new initiative in search of justice, a search that is at the heart of our national identity and one that embodies the aspirations that both President Obama and Attorney General Holder have repeatedly articulated.
My suite of offices in the Justice Department Building 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 state and federal judges, prosecutors and public defenders, and leaders of charitable organizations have openly marveled that there is finally such a sign somewhere in the vast 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. As people writing such emails imagine the Department of Justice, it’s really just the prosecutorial arm of the Federal Government and should really be called something like the Department of Investigation, Police, and Incarceration – something like the Interior Departments of some regimes in the world, almost like the KGB of the old USSR. As such critics see the matter, “The Constitution directs the President to ‘see to it that the laws are faithfully executed.’” Some of them, carrying this theme to an extreme, insist on knowing: “Where in the Constitution does it say in so many words that anyone is entitled to justice?” These people forget, of course, that part of the “law” that our President is directed to “execute” is the Constitution’s dual command of fairness and equality, and that the laws of Congress creating the Justice Department early in our history entrusted that Department with broader powers than solely those of prosecuting and punishing wrongdoers and imposed upon it deeper obligations to ensure the rights of our people. Indeed, our Constitution’s Preamble defines one of its founding purposes as that of “establish[ing] Justice, . . . [to] secure the Blessings of Liberty to ourselves and our Posterity.” One of the more amusing of the emails, sent by someone who clearly lost track of why our Constitution was adopted in 1789 and why we have amended it from time to time to cure its defects, was this wisecrack: “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 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 may have taken part in the legal clinic program, which, I understand, has areas of practice as diverse as labor law, criminal law, refugee law, and women’s rights, among many others. And the birth of your clinical programs is a wonderful example of the kind of international cooperation that my Initiative intends to support and promote – you established the program after a conference on clinical legal education sponsored by the U.S. Embassy in 1997. The first clinics were funded by a grant from the Ford Foundation, and, in 2001, representatives from Poland's legal clinics went to South Africa to study and learn from their clinical program, which has been operating since the 1970s. Since your first clinic began operating in 1997, students have handled more than 10,000 cases – that’s an astounding number and a remarkable contribution to increasing access to legal services in areas of critical need.
Last month, I had the privilege of attending the White House swearing-in of the newly confirmed members of the Board of the Legal Services Corporation, an organization in the U.S. that provides legal services to low income people in civil cases, which, happily, included my friend and colleague and the remarkable dean of the Harvard Law School, Martha Minow. Justice Kennedy was doing the honors, and he prefaced the ceremony with a reminiscence of a commencement speech he had heard the Soviet writer and dissident, Alexander Solzhenitsyn, deliver. Solzhenitsyn’s theme was a challenge to the rule of law. Not simply a claim that the rule of law was honored in the breach both in his country and sometimes in ours but a bolder claim that the rule of law was itself a false ideal, one not worthy of defending. At the time, Justice Kennedy found himself perplexed. Later, he realized that the impulse underlying Solzhenitsyn’s complaint was understandable in terms of Russia’s history and culture. Never having experienced law as an expression of democracy, Solzhenitsyn saw it only as an edict of the state, as the ukase of a ruler. To him, law represented something cold and unforgiving, the inflexible command of the sovereign, not the protection of those otherwise under the sovereign’s thumb. To us, at least ideally, and I believe to you, the law is not simply a command but a promise – a promise whose fulfillment we call justice.
I am thrilled that, through the American Law Center, you have focused your studies on the American system of justice and its foundational promise that law should produce justice for everybody, regardless of wealth, race, ethnic origin, class, gender, or religion. However, as I am sure you have learned during the course of your studies, law and justice are not always synonymous. Law is a means. Justice is an end. And, all too often throughout world history and, sadly, my country’s 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 to our Constitution, the law in America denied full citizenship (including the right to vote) to an entire gender (over half the population). And our laws even now do not ensure full equality to individuals based upon their sexual orientation.
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 our Constitution’s preamble: “. . . in order to form a more perfect Union.” And both President Obama and our Attorney General Eric Holder recognize that the perennial deficiencies in indigent defense and the enormous gaps in legal services for the poor and middle class in the United States constitute not just a “problem” but a “crisis.”
And it’s about time. An organization called the Innocence Project reported in February of this year that, of 250 DNA exonerations that have occurred in the United States, the average time spent in prison before exoneration was almost 13 years. That's a total of 3,160 years of unjust imprisonment for individuals who did not commit the crimes of which they were convicted. The reasons aren't hard to discover. Our public defenders' offices are underfunded and overworked – annual caseloads can range from 500 to 900 felony cases and over 2,000 misdemeanors per lawyer. In 2007, some defenders in New Orleans averaged 19,000 cases a year, allowing an average of just 7 minutes per case.
The situation is no less dire in civil cases, including those that involve life-altering matters like deportation, loss of child custody, or eviction. Our Supreme Court – unlike the European High Court of Human Rights – has not held that poor people in such proceedings are entitled to be represented by counsel at public expense. But 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 U.S. 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 the United States 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 children 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 in the United States, 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 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,” the United States is indeed experiencing a genuine crisis in access to justice?
Happily, we are finally moving in the right direction. Full as the agenda is, the Obama Administration is committed to improving delivery of legal services and increasing access to justice for all our citizens. The president has proposed 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, such as the prohibition on the filing of class action lawsuits.
And I’m glad to report that some of our state legislatures and our state and federal courts 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 attorneys at state expense to indigent civil litigants in cases involving basic human needs like housing and child custody. A number of State Chief Justices are leading efforts to assist litigants in state courts who increasingly cannot afford an attorney even when very important rights are at stake. I hope that the Access to Justice Initiative that I now lead can be an integral part of this effort to improve our country’s justice system.
I am here today, though, in furtherance of another critical aspect of our work: looking outward to study how other nations seek to administer justice. Just as you may have learned during the course of your studies much about our legal system, I believe that there is much we can learn from yours. In fact, in the past few weeks, prior to my trip to Warsaw, my staff and I have met with high-level delegations from Australia and Vietnam, and we have spoken with numerous scholars whose studies focus on legal structures here in Europe and elsewhere. Just this morning, I had the privilege of meeting with your Minister of Justice and learned much from him about some of the challenges faced in the legal aid system here in Poland and about the reform efforts that are underway to address those problems. Our Access to Justice Initiative 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 changes, exchanging ideas with our counterparts around the world, and trying to leave no stone unturned in confronting this enormous challenge.
I hope that, as you continue with your studies and your professional careers, you contribute to that great effort in your own country. Regardless of what professional path you choose, the cause of access to justice is equally yours. The lawyer who serves the needs of the poor or defends people charged with crimes has no greater stake in that value than do the prosecutor, judge, or wealthy law firm lawyer.
Rightly understood, justice isn’t a zero-sum game. In the end, when we broaden the access routes to the mighty torrent of justice, we widen them for everyone. I urge you to do your part in that great effort, and I know you’re fully capable of playing that role. But I don’t want to spend too much time speaking to you, as I’d very much like to speak with you. I’m sure you will have some questions to ask of me, but I’m especially interested in what I can learn from you.
Thank you so much for your attention.