Acting Senior Counselor for the Access to Justice Initiative Deborah Leff Speaksat the American Constitution Society for Law and Policy Convening, “Considering Gideon at 50: the History and Future of Indigent Defense”

Good afternoon.

I would like to thank the American Constitution Society – and you, Caroline – for pulling together today’s symposium. I also want to acknowledge ACS’s superb chairman, Peter Edelman. I don’t use the word “superb” lightly. I had the privilege of working with Peter when he was my board chair at the Public Welfare Foundation, and I also have had the opportunity in my current position to observe his leadership as head of the District of Columbia’s Access to Justice Commission, where his wisdom, passion, and commitment have helped make it what one of the finest Access to Justice Commissions in the country. Peter, thank you for all you do.

I’m here today, frankly, because of the Gideon case … not just because I work at the Department of Justice for the Access to Justice Initiative, which is so committed to improving legal representation for the most vulnerable members of society … but also because it was the Gideon case that helped convince me to become an attorney. I read Anthony Lewis’s remarkable book, Gideon’s Trumpet, when I was in high school. I was so inspired by the story of one man who fought so hard for justice … and so impressed that one person could make a difference, and that having a lawyer meant the difference between precious liberty or being locked up for years, the difference between justice and injustice. Clarence Earl Gideon never lost his sense of justice. Believing he was wronged by the State of Florida, he had the passion, the energy, and the core belief in justice in America, to try to do something about it. He brought a case, saying as a poor person who could not afford a lawyer, he had a constitutional right to have a lawyer appointed for him. And he secured that constitutional right for all of us. I knew I could never be Gideon – for one thing, I’m a very bad pool player – but I also knew that I could try to fight for justice, and that’s why I started my legal career several decades ago as a trial attorney with the Department of Justice’s Civil Rights Division.

Like Peter, I am an enormous admirer of Robert F. Kennedy, who was the Attorney General of the United States when the Supreme Court decided Gideon v. Wainwright. In a speech a few months after the Gideon decision came down, Robert Kennedy observed, “I think the story of the Gideon case gives us a profound insight into the nature of our judicial system at its best – and into the basic sense of human justice on which is it founded.

“If an obscure Florida convict named Clarence Earl Gideon,” he said, “had not sat down in his prison cell with a pencil and paper to write a letter to the Supreme Court, and if the court had not taken the trouble to look for merit in that one crude petition, among all the bundles of mail it must receive every day, the vast machinery of American Law would have gone on functioning undisturbed. But Gideon did write that letter, the court did look into his case; he was retried with the help of a competent defense counsel, found not guilty and released from prison after two years of punishment for a crime he did not commit – and the whole course of American legal history has been changed.”

It has indeed changed – but it has not changed as much as we would like, or as indigent defendants need, to achieve justice.

We know from a 2011 Justice Policy Institute report that only 21 percent of reporting state public defender systems and only 27 percent of county-based public defender offices have enough attorneys to meet caseload guidelines. The majority of county-based public defender offices do not have caseload limits, and they don’t have the authority to refuse cases when they are assigned more cases than they can competently and responsibly handle. Lawyers’ caseloads go unchecked and their work unsupervised. Those caseloads can be so immense – sometimes totaling more than 700 felony cases a year per attorney – that the pressure to get defendants to plead guilty and get off the court dockets is enormous.

The salaries of appointed counsel and contract counsel – where the contract often goes to the lowest bidder, the lawyer who offers to attempt to achieve “justice” at the lowest cost – are so meager that the result is assembly-line justice. Eighty-seven percent of small county-based public defender offices do not have a single full-time investigator. There is great pressure to quickly plead out a case rather than investigate and evaluate the facts – for investigation and evaluation take time and money that just aren’t available. And that means for too many poor people, “equal justice under law” is simply a slogan, not the underlying value so central to fairness in America.

What does this mean for the indigent defendant? Spending on indigent defense is dwarfed by the spending on the rest of the criminal justice system. A 2009 report authored by the National Right to Counsel Committee found pervasive inequities between the resources allotted to defense counsel and prosecution, despite the American Bar Association’s urging for “parity between defense counsel and the prosecution with respect to resources.” The report found widespread and often dramatic disparities in the amount of funds, sources of funding, in-kind resources, staffing, and salaries allocated to defenders versus prosecutors. For example, in Tennessee in one year there was a difference of more than $70 million between the budget allotted to prosecutors and to indigent defenders, and in California the difference in funding rose over 20% from one fiscal year to the next, despite the California Commission on the Fair Administration of Justice’s finding that the state’s indigent defense budget is underfunded by more than $300 million.

All you have to do is pick up the paper, or look on the web, or talk to folks on the subway to know that sequestration is wreaking havoc on budgets. But despite the strains that we are going through and the cutbacks we are making, the Department of Justice is continuing its support for indigent-defense projects, because fulfilling Gideon’s legacy and ensuring the constitutional right to counsel are central to our mission.

At the Justice Department, my boss, Attorney General Eric Holder, has repeatedly spoken of this country’s indigent-defense crisis, noting that the basic rights guaranteed under Gideon have yet to be fully realized. Millions of Americans still struggle to access the legal services that they need and deserve – and to which they are constitutionally entitled. And far too many public defense systems lack the basic tools they need to function properly.

We’re working to address that. In fact, the office that I lead, the Access to Justice Initiative, was specifically established by the Attorney General in 2010 to work to ensure that everyone – including vulnerable populations and those who are poor – can access their fundamental rights. We work closely with the Department of Justice’s Office of Justice Programs to support its work in making grants that advance indigent-defense efforts. In 2012, the Bureau of Justice Assistance awarded $1.2 million in funding to four states through an “Answering Gideon’s Call” solicitation, to help better understand and address indigent defense issues. Another $1.6 million was funded by the National Institute of Justice to support research projects looking at holistic defense approaches, juvenile waiver of counsel, and the challenges of representing indigent defendants with mental health issues.

Just last Friday, the Attorney General announced nearly two million dollars in new initiatives for fiscal year 2013 to strengthen indigent defense. The Bureau of Justice Assistance will be issuing a new, additional solicitation to be titled, “Answering Gideon’s Call: National Assistance to Improve the Effectiveness of Right to Counsel Services.”  This initiative will enable an organization to work directly with states and counties across the United States to enhance their ability to provide quality representation to indigent defendants and to promote implementation of innovative strategies that incorporate the ABA Ten Principles of a Public Defense Delivery System.  The grant recipient will provide training and technical assistance to state and local jurisdictions, produce publications and resources, and develop related national policies.

Additionally, two new jurisdictions will be awarded grants to improve indigent defense delivery systems.  Building on last year’s “Answering Gideon’s Call” solicitation, these grants are designed to help state and local communities improve the capacity of indigent defense delivery systems and increase the knowledge base about those systems through research. 

Additional funds will be distributed through the Bureau of Justice Assistance’s National Training and Technical Assistance Center to provide technical assistance to jurisdictions to meet their constitutional obligation to provide adequate representation to indigent defendants. That funding can be used to provide assistance to assess the overall effectiveness and efficiency of indigent defense systems, develop recommendations to assure that adequate and appropriate indigent defense services are provided consistently throughout the state to ensure constitutional adequacy, or determine the appropriate measures for evaluating a defender services program.

And effective representation for juveniles is also a priority. Last week, the Attorney General announced that subject to available funds, the Office of Justice Programs’ Office of Juvenile Justice and Delinquency Prevention anticipates awarding $400,000 through a competitive solicitation for a Juvenile Indigent Defense National Clearinghouse.  These funds will support the improvement of juvenile indigent defense across the nation, offering a broad range of activities and services to strengthen the overall level of systemic advocacy, increase the quality of juvenile indigent defense representation, and help ensure professional and ongoing technical support to the juvenile indigent defense bar.

Along with this news, we, like most of you in this room, are watching and assessing promising initiatives to improve indigent defense all across the country. Here’s one example. When I tell people that many states and localities charge indigent defendants a fee for the services of a public defender, they can’t believe it. Poor people have to pay for a public defender? But many states do assess such a fee, and waivers are hard to come by. There are efforts to rationalize or end application fees so that the indigent are not required to pay for “free” counsel. We must add our voices and support to make that happen.

Defenders in communities around the country are filing motions to withdraw from cases due to excessive caseloads, and reform legislation is underway to institute caseload caps.

Many states – Michigan, New York, Georgia, Missouri, Texas, New Mexico, and Louisiana among them – are undertaking reform efforts. They need to be encouraged.

There is a growing holistic defense and community-oriented defense movement. The Department of Justice has been tremendously supportive, both through Bureau of Justice Assistance grants to the Bronx Defenders and through the National Institute of Justice–funded study I mentioned that’s now underway evaluating such programs.

And more work is being done by the Justice Department to make sure all stakeholders have a voice in the system, and that defenders participate in state processes to determine the allocation of critical Byrne JAG funds, so that the defense and court functions are supported along with prosecutions. It is important that your voices be heard.

Like Clarence Gideon, we cannot be satisfied with the status quo. We know there is so much left to do to fulfill Gideon’s promise. So I think it’s only fitting to close with the words of the man who made such a difference, the man whose contributions we celebrate today, the man whose vision we have yet to fulfill. In a letter to his attorney, Abe Fortas, Mr. Gideon wrote, “I have no illusions about law and courts or the people who are involved in them. I have read the complete history of law ever since the Romans first started writing them down and before of the law of religions. I believe that each era finds a improvement in law[;] each year brings something new for the benefit of mankind. Maybe this will be one of those small steps forward.”

As it turns out it was big step, a very, very big step. But there is a long road ahead to justice for many indigent defendants in this country, and we need to move forward with commitment, speed, and righteousness. I look forward to traveling that road with you.

Thank you.