“Achieving fundamental fairness within our criminal justice system depends on recognizing the importance of both a strong prosecution and a zealous defense. Because when it comes to ensuring justice and fairness in our criminal justice system, both of us represent the defendant at the bar. Although we have a long way to go before public defenders have the resources they need and deserve, the Justice Department is not standing still in the meantime.”
Just as Attorney General Lynch spoke these words in Washington, D.C., the Second International Conference on Access to Legal Aid in Criminal Justice Systems was underway in Buenos Aires, Argentina, where a delegation from the United States was demonstrating this commitment to indigent defense including by supporting the launch of the first global network of indigent defense providers. The International Legal Aid Network was borne out of work done at this year’s United Nations Commission on Crime Prevention and Criminal Justice (UN Crime Commission), where the United States introduced a groundbreaking resolution promoting access to indigent defense, including through the creation of such a network. The resolution builds on the UN General Assembly’s adoption of the non-binding UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems in December 2012.
As the UN Principles and Guidelines confirm, criminal legal aid – or indigent defense – “is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law.” Moreover, the right to counsel is enshrined in many countries’ constitutions – like the U.S. Constitution – and international law, such as the International Covenant on Civil and Political Rights. However, many countries, including the United States, still struggle to provide effective indigent defense services. International efforts to promote the right to counsel and support the providers of these services are critical to advancing justice and the rule of law across the world.
It is significant that the UN Crime Commission, the principal policymaking body of the United Nations in the field of crime prevention and criminal justice, has taken up the issue of indigent defense in recent years through expert meetings, publications and tools. The United States has supported this work, including by co-sponsoring the UN Principles and Guidelines and participating in both international conferences on criminal legal aid in Johannesburg, South Africa, in June 2014 and this year in Buenos Aires. This activity has coincided with the elevation of legal aid and access to justice by other UN processes, such as the Sustainable Development Goals, and other multilateral bodies like the Organization of American States (OAS) and Organisation for Economic Co-Operation and Development (OECD).
This year’s resolution builds on this past work. Also, notably, it advances the UN’s ambitious 2030 Agenda for Sustainable Development by promoting access to justice, a key piece of Sustainable Development Goal (SDG) 16 of that agenda. By developing new tools, guidance and political support for indigent defense providers, the resolution paves the way for progress on this critical SDG.
This trailblazing resolution works by setting out three primary strategies:
First, it invited member states to participate in the Buenos Aires conference, which was a venue for effective peer-to-peer learning in the field of indigent defense. Principal Deputy Associate Attorney General Bill Baer provided keynote remarks at the conference detailing the Obama Administration’s accomplishments on indigent defense:
“Our progress towards fulfilling these promises has not been uninterrupted. At times, we have made great strides, dedicating resources, energy and ideas to the task. At other times, we have fallen short of our own ideals. But with each triumph and setback, we have been reminded that justice is as much a journey as it is a destination – as much a process as it is an outcome – and that the fairest criminal justice system gives equal attention to both.
“Addressing this challenge has been a priority of the Department of Justice in the eight years of the Obama Administration. In 2010, the department launched the Office of Access to Justice – which I oversee and which seeks to improve access to legal aid to everyone in the United States who needs it. Much of the Office’s work is directed at strengthening criminal defense for the poor by focusing on many of the same values outlined in the 2012 U.N. Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.”
The resolution also encourages governments to exchange information and best practices, including on the development of national-level indicators on SDG 16 and its target 16.3. The United States is already working to identify and develop these indicators through the activities of the White House Legal Aid Interagency Roundtable (WH-LAIR) and its Working Group on Access to Justice Indicators and Data Collection. Developing methodology to track access to justice is a difficult and important endeavor and one that can be improved through collaboration across borders.
Finally, the resolution endorses the creation of national, regional and international networks of criminal legal aid providers. While international networks and associations for prosecutors, judges and police already exist, there is no comparable network for defenders. The resolution encourages the development of this network, which was formally announced in Buenos Aires. The International Legal Aid Network, which is still in the beginning stages of development, will surely help defenders coming from developing countries and systems strengthen their indigent defense services. But it will also help defenders coming from developed systems – like in the United States – share best practices and learn from one another.