Principal Deputy Assistant Attorney General Vanita Gupta Delivers Remarks at the Inaugural Meeting of the Right to Counsel National Consortium

Thank you, Assistant Attorney General [Karol] Mason, for your kind words and for the innovative, dynamic leadership you bring to the Office of Justice Programs.  I also want to thank Kim Ball and [Director] Denise O'Donnell from the Bureau of Justice Assistance (BJA) for organizing this inspiring consortium and inviting me to speak.

It’s energizing to see a diverse group of justice system stakeholders, from prosecutors to defense counsel to judges to advocates to public officials, participate in today’s critical conversation about the right to counsel.  And it’s a privilege to join you at this inaugural convening as we stand together – unified in our belief about the imperative value of public defense, dedicated to addressing our nation’s barriers to justice and eager to share our collective best practices for reform.

Before I begin, I want to acknowledge my colleagues at BJA and the Access to Justice Office (ATJ), led by Director Lisa Foster, for their tireless and outstanding work and partnership to support the right to counsel.  Together, we have committed to comprehensive efforts to improve the delivery, quality and availability of legal services for all Americans – regardless of the salary they earn or the societal status they hold.

Although I’ve only been at the helm of the division for one year, it has been a rather intense and active one.  Partly driven by tragedy, partly by broad community mobilization, partly as a result of years of advocacy from all corners, conversations around policing and criminal justice reform have emerged at the center of our national debate. 

As someone who has spent nearly her entire adult life on criminal justice and civil rights issues, I see an opportunity to seize this moment and achieve real, sustainable reform.  I see a broad-based coalition united to bridge divides and implement common-sense solutions.  I see a willingness to address truly unsustainable trends, from our courts to our jails.  And I see a desire to lead candid, meaningful dialogue.

Under the leadership of President Obama, former Attorney General [Eric] Holder and now Attorney General [Loretta] Lynch, this administration has prioritized reforming its criminal justice policies to build a system that is more just in how it treats its citizens, more prudent in spending its resources and more effective at protecting its communities.  Against the backdrop of this broader reform agenda, the Civil Rights Division is also committed to proactively addressing challenges at the front end of our justice system.  And so today, I want to discuss our work in the division to focus on a critical part of this effort: the crisis of our nation’s indigent defense system.  But first, I’d like to start with a short story that explains the perspective I bring to these issues. 

As a young lawyer for the NAACP Legal Defense Fund, I worked on a case in Tulia, Texas, where the uncorroborated testimony of a single police officer – who had himself been investigated for misconduct and racial bias during the sting operation – had sent dozens of African-American defendants to prison on low-level drug charges, with sentences ranging from 20 to 361 years.

Tulia did not have a public defender.  Each of my clients had private, court-appointed counsel who were paid a flat fee of a few hundred dollars.  Some of these lawyers had no prior criminal defense experience or training.  Many had met their clients for the first time on the day that they advised them to take a plea.  Several had not filed a single motion before their clients took pleas.  Pressure to stay in the good graces of the judge in order to remain on the list for court appointments made it difficult for these attorneys to present a rigorous and adversarial defense that tested the state’s evidence in a meaningful way.  And it was clear that for many of these very well-intentioned attorneys, the lack of any system or investment in the defense function had resulted in failures not only for the clients, but for the defense and prosecutorial bar as well as for the justice system writ large in Tulia.

There is much more to be said about these cases, but we eventually proved that this so-called victory in the “War on Drugs” had, in fact, been a grave injustice, and Governor Rick Perry pardoned the defendants.  Although at the time Tulia felt like a drop in the bucket, it highlighted how systemic barriers to adequate legal representation can have a detrimental impact on both the fairness and effectiveness of our criminal justice system.

The right to counsel embodies our nation’s founding ideal that justice must remain immune from the inequalities that pervade other areas of society.  And it encompasses the undeniable truth that in our Constitution, before our courts and under our laws, all citizens are equal.  As Clarence Earl Gideon wrote from a Florida jail more than 50 years ago, “It makes no difference how old I am or what color I am or what church I belong to if any.  The question is I did not get a fair trial.  The question is very simple.  I requested the court to appoint me [an] attorney and the court refused.”  Yet even more than half a century after the Supreme Court went on to affirm the “obvious truth” that a fair trial requires the right to counsel, too many barriers still exist in courts across America.  And whether we serve as an arbitrator of justice or a practitioner of law, each of us has a profound responsibility, a legal obligation and, indeed, a moral imperative, to remedy those barriers as we strive to make the promise of Gideon real for all Americans.

Beyond serving as the anchor of legitimacy in our justice system, research demonstrates a compelling case regarding the broader impact of the right to counsel on public safety and our economy.  When defendants are denied their right to counsel early in the process, it can significantly impact their likelihood of pre-trial release, according to a recently released report by the Constitution Project that cites 2008 data used in the Buffalo Law Review.  And the Arnold Foundation, citing data from a Kentucky jail in a 2013 report, has documented the correlation between longer periods of pre-trial detention – even over a matter of days – with higher rates of new criminal activity and recidivism.  The bottom line is this: denying one’s Sixth Amendment right to counsel can negatively impact public safety.  And it also drains precious taxpayer resources.  Across the country, nearly two thirds of all inmates in our county jails are defendants awaiting trial – many of them non-violent offenders – at a cost of roughly $9 billion.  And so we must realize that protecting the right to counsel benefits us all, at every stage of our criminal justice system and in every area of our society.

The Civil Rights Division, working in concert with ATJ, has helped lead the department’s vigorous defense of the right to counsel through ground-breaking statements of interest.  Often, insufficient funding for indigent defense can lead to situations where even well-intentioned and capable public defenders serve, in effect, as attorneys in name only.  Our statements of interest have helped lay a firmer legal foundation for efforts across the country to establish that structural deficiencies in public defense systems violate the Sixth Amendment.

In August 2013, in a case in federal court in Washington State, Wilbur v. City of Mount Vernon, the Justice Department filed a statement of interest, marking the first time we participated in a case regarding a state’s provision of counsel under the Sixth Amendment.  We argued that the assessment of whether public defenders are so overburdened that they cannot provide effective assistance of counsel must incorporate a more holistic “workload” analysis, a concept championed by the American Bar Association, among others.  This concept considers not only a defender’s numerical caseload, but also additional factors, including the complexity of a defender’s cases, her skills or experience, available support services and resources and her other duties.  Ultimately, the court found a systematic deprivation of the right to assistance of counsel and issued an injunction that included remedies proposed by the Justice Department.

In a New York case last year, Hurrell-Harring v. State of New York, we filed a statement of interest emphasizing that denial of counsel can result from a range of structural factors, including a lack of resources, high workloads and understaffing of public defender offices.  We argued that constructive denial of counsel can occur when defenders cannot adequately provide traditional markers of representation – including timely and confidential consultation with their client, appropriate investigation and meaningful adversarial testing of the prosecution’s case.  Last October, the plaintiffs reached a comprehensive settlement agreement that institutes transformative reforms in the public defense system across five counties in New York state.  These reforms include guaranteeing that indigent criminal defendants will have legal counsel at arraignments as well as establishing caseload and workload standards for public defenders.

And just two months ago, we filed an amicus brief in a Pennsylvania case where the plaintiffs alleged that the failure of Luzerne County to provide adequate resources to the public defender’s office resulted in a violation of the Sixth Amendment right to counsel.  In our brief, we argued that compromising traditional markers of legal representation and imposing substantial structural limitations – including unreasonably high workloads and understaffing – demonstrates the need for civil action to impose systemic remedies.

Our involvement in a Georgia case is another example of our commitment to realizing the promise of Gideon.  There, a class of defendants in the Cordele Circuit challenged the frequent absence of public defenders in juvenile court, the “meet ’em and plead ’em” processing of adults in superior court and the utter inability of the circuit’s three public defenders to provide adequate representation in their 1,400 cases.  We filed a statement of interest asserting that due process requires every child facing a loss of liberty to be represented – from their first appearance through, at least, the disposition of their case – by an attorney with the training, resources and time to effectively advocate for them.  Shortly after our filing, the local court reached a settlement that included enhanced resources for defenders and a specialization requirement for attorneys representing children in juvenile court.

Across the juvenile justice system, the division has vigorously enforced the right of adequate access to counsel, and I want to briefly highlight the impact of our work.  In Tennessee, our investigation into the Juvenile Court of Memphis and Shelby County led to a transformative settlement agreement, creating a specialized Juvenile Defender’s Office that provides attorneys with reasonable workloads, administrative support, effective training and sufficient resources.

In St. Louis County, Missouri, our investigation of the juvenile justice system revealed the chronic underfunding of indigent defense.  We found that in 2014, the County Family Court had a single public defender covering 400 cases.  Under these circumstances, practically no lawyer, no matter how competent or dedicated, could provide effective assistance.

In 2012, we sued local and state jurisdictions in and around Meridian, Mississippi, alleging that children arrested in school, often for minor offenses, were being incarcerated for days at a time without a probable cause hearing.  And we found that children had not consistently received meaningful legal representation during detention, adjudication and disposition hearings.  Accordingly, our agreements require the Meridian Police Department to uphold constitutional protections following a juvenile’s arrest, including preventing officers from interviewing detained youth without the presence of an attorney or guardian. 

Each of these cases reminds us of the urgent need – and constitutional requirement – to provide all defendants, including those facing misdemeanor charges, with counsel.  At a committee hearing earlier this year, Senate Judiciary Committee Chairman Chuck Grassley discussed the importance of indigent defense for those charged with misdemeanors, commenting, “In reality, the Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day.”  He went on to diagnose the impacts that extend well beyond our criminal justice system, explaining that those convicted of misdemeanors “may have problems obtaining a job for the rest of their lives.  That hurts them.  It hurts the economy.  It hurts all of us.”

The failure to provide adequate legal representation is part of a broader array of challenges surrounding the unjustifiable and frequently unconstitutional treatment of low-income people in our criminal justice system.  The division’s report on the Ferguson, Missouri, Police Department, released in March, illustrates this trend through the powerful, but troubling dynamic of the city’s undue focus on revenue generation through policing.  We uncovered emails explicitly stating that enforcement strategies had been undertaken “to fill the revenue pipeline.”  And officers were instructed to take ticketing “to the next level” or risk “disciplinary action.”

Before Ferguson and since, we have taken on other practices that unfairly disadvantage low-income individuals.  In August, for example, we argued in an Idaho case that punishing homeless people for “camping” or sleeping in public, when there is insufficient shelter space in the city, criminalizes people for their status of being homeless, in violation of the Eighth Amendment.  And, in an Alabama case this year, we argued that a system of prefixed bail amounts that imprisons people without regard to their ability to pay violates the 14^th Amendment. 

Together, our efforts emphasize that sustainable reform on this issue, and so many others in our criminal justice system, must take shape at the local and state levels, through collaborative partnerships built across professions, sectors and agencies.  Looking around this room, I am confident that we have the vision to remedy injustice when we see it, the expertise to institute reform and the direction to execute our shared mission.  I commend the outstanding work each of you has already achieved, and I am optimistic that, because of your steadfast leadership and robust engagement, this consortium holds the capacity to make a transformative and lasting difference in communities across the country.

When Justice [Hugo] Black wrote the Supreme Court’s opinion in Gideon, he emphasized the unique power of our legal system to serve as an equalizing force.  He explained that America guarantees fair trials “in which every defendant stands equal before the law.”  And he added that, “the right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”  The right to counsel, anchored by the fundamental ideal of fairness, not only governs our legal system.  It also defines the beauty, resiliency and strength of our national identity.  It breathes life into our founding ideals.  And it calls on those of us entrusted with the privilege of leadership to bring America ever closer to the vision of equal justice for all its people.

Today, let us rededicate our resolve to protect the fairness and impartiality of our justice system.  Let us continue this work until all our citizens can receive the rights our Constitution guarantees.  And let us seize the tangible passion from today’s conference as we inspire others to join us in this most noble and worthy cause.  Thank you.