Remarks as delivered
Good evening, everyone, and thank you for that kind welcome. I also want to thank my former colleague from the U.S. Attorney’s Office in Brooklyn, Chief Judge Beryl Howell, for that generous introduction. It is a pleasure to be here with so many distinguished colleagues in the law. Each of us has chosen to dedicate our lives to serving the law and promoting justice. That is an enormous privilege and a tremendous responsibility, one that joins us together with a bond that is indeed sacred. So let me just say once again how humbled and inspired I am to be in this company tonight.
Serving the law and pursuing justice was the cause that animated the namesake of this lecture, Judge Thomas A. Flannery, throughout his life. Unlike so many of you, I did not have the good fortune to know Judge Flannery. But through countless friends and colleagues – including Assistant Attorney General Peter Kadzik, who clerked for Judge Flannery – I have learned of his impressive life and his enduring legacy. That legacy resides not just in the work he did, but in the work he inspired. Throughout his career – from his time in private practice to his years on the federal bench – he was a mentor to countless lawyers, and the imprint of his integrity and wisdom continues to shape their work. In 2009, as a testament to his outsized influence, a group of his former clerks and colleagues created this lecture, which has become a critical forum for thinking about how we can ensure and expand the promise of equal justice under the law for all Americans.
We are all here – not just tonight but in this wonderful profession of ours – because we believe in that promise. We are here because we love the law. we love it for its promise and potential. We live for the challenge of each new case, the satisfaction of crafting solutions for the knotty issues people bring to us. And it is in the law that we find the protection of our most cherished ideals. But the great challenge of the law, or of anything that we love, is to see it clearly, through the eyes of those not similarly enthralled. I recall being a young prosecutor in Brooklyn, rushing through a busy day in the courthouse, going from courtroom to courtroom to handle different matters. One day I was hailed by a young African American man in the hallway, who asked to speak with me. I soon realized he was a defendant on one of my cases. he wanted me to explain the charges to him, the consequences, and talk about what he should do. I told him I couldn’t have that conversation with him and that he would need to speak with his own attorney, whom I knew and who was very good. He said that his attorney was very nice, but he went on to say, “I don’t know him; I don’t understand what he’s saying to me, and I don’t know what to do.” In both criminal law and the civil arena we can never forget that for many who come before the bar, they don’t know us, they don’t understand what we are saying to them and they don’t know what to do. And because of this, the promise of equal justice under the law rings hollow for too many of our fellow citizens, especially low-income Americans and Americans of color. Because of an array of policies, practices, and attitudes in our justice system, too many Americans experience the law not as a guarantee of equality, but as an obstacle to opportunity. Collectively, these gross injustices – which include excessive fines and fees, money bail, and inadequate legal representation – amount to nothing less than the criminalization of poverty.
These policies have stark consequences: not just for families living paycheck to paycheck; not just for neighborhoods starved of investment and deprived of human potential; but for all of us. Because the existence of a two-tiered system of justice runs contrary to our most cherished beliefs, diluting our national creed that all are created equal. All of us – but especially those of us in the legal profession – have an obligation to fight for our belief that there can be no price tag on justice; to uphold our conviction that the promises enshrined in the Declaration of Independence and the Constitution belong to all Americans; and to affirm our faith that in the eyes of the law, all Americans have equal worth, equal rights, and equal dignity.
That work begins by ending the use of the justice system as a source of revenue. Throughout the country, the costs of running a court and other municipal expenses are increasingly borne by defendants, who are charged with a proliferating number of so-called “user fees” for everything from paperwork to legal representation. Defendants are often required to pay whether they are found innocent or guilty. Those who can afford to pay can quickly move on with their lives. But for those who can’t, these fees can be a trap door into an intractable cycle of debt, incarceration, and poverty. Failure to pay a fee can result in a host of collateral consequences like additional fines, the suspension of a driver’s license, or even jail time –an unconscionable state of affairs in a nation that outlawed debtors’ prisons in 1833. The fact is that when we treat defendants as cash registers, rather than citizens, we do severe damage to the credibility of our institutions. We stain the sanctity of our laws. And we only tighten the shackles of those struggling to break the chains of poverty. We must never forget that, for so many, they don’t understand what we are saying to them, and they don’t know what to do.
Under the Obama Administration, the Department of Justice has taken a number of actions based on our firm belief that the goal of law enforcement is to ensure public safety – not to shore up a shrinking tax base. For example, our investigation of the municipal government of Ferguson, Missouri, found widespread use of excessive fines and fees. The city imposed steep fines for a range of minor offenses, including $302 for jaywalking and $531 for untended lawns. Before our investigation, these penalties – along with a variety of court fees – constituted a growing portion of the city’s budget – from almost $1.4 million in 2010 to a projected $3.1 million last year. That’s a rise from more than 10 percent of the city’s budget in 2010 to more than 23 percent just five years later. After completing our investigation, we reached a consent decree with the city that included an amnesty program for those with open charges and pending debts that were unfairly imposed. As of August, this program has dismissed more than 32,000 court cases and canceled more than $1.5 million in fines, a significant step towards restoring trust in a city where many citizens’ faith in their government has been sorely tested.
Of course, Ferguson is not an outlier. Fines and fees are misused in municipalities throughout the country, which is why the department is engaging with state and local officials to encourage reform. Last December, for instance, we joined the White House to host a two-day conference with judges, advocates, legislators, and court administrators to discuss the challenges presented by the use of fines and fees; to identify solutions; and to share best practices. That gathering made clear that while fines and fees remain a real problem, many jurisdictions are working to change these practices. In order to support those efforts, our Civil Rights Division and our Office for Access to Justice sent a letter in March to every chief justice and state court administrator in the nation, articulating the basic constitutional principles concerning the use of fines and fees. In September, our Bureau of Justice Assistance awarded “Price of Justice” grants to five states to help them reform fines, fees, and bail practices. And just last week, the Civil Rights Division and the Office for Access to Justice filed a statement of interest in a case challenging Virginia’s automatic suspension of driver’s licenses for failure to pay fines and fees. That policy has deprived more than 900,000 Virginians of their licenses – more than half of them African American. Our statement contends that suspending a driver’s license without considering an individual’s ability to pay is unconstitutional, and we are hopeful that the court will remedy this regressive policy.
We are also working to transform how states and municipalities use bail. Fifty years ago, Congress passed the Bail Reform Act of 1966, an overhaul of federal bail practices that was championed by former Attorney General Robert Kennedy and the Department of Justice. Unfortunately, reform at the state and local levels has been much slower to materialize. As a result, thousands of nonviolent, non-felony defenders languish behind bars, not because they have been found guilty of a crime or pose a flight risk, but simply because they cannot pay. In response, the department has funded bail reform in several states and provided critical research and data. Our consent decree with Ferguson ended the city’s use of secured money bond. And we have also filed a number of legal briefs, including one in the Eleventh Circuit, as well as one that led the city of Clanton, Alabama to agree to release most misdemeanor defendants without requiring bail.
All of these challenges are deepened by the perilous state of indigent defense in our nation. I am so glad that we got to hear from Director [Avis] Buchanan earlier this evening because every day, public defenders like her do heroic work to realize the promise of Gideon v. Wainwright. But in communities across the country, public defenders find themselves overwhelmed by swelling caseloads and shrinking budgets, leaving them to do the best they can for their clients, which is often little more than helping them plead guilty.
Comprehensively addressing the crisis in indigent defense means finding the will to fund public defenders at the same levels we devote to prosecuting criminals. 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. In 2014, we filed a statement of interest in the case of Hurrell-Harring v. State of New York, and statements of interest or amicus briefs in three additional cases, arguing that the denial of a person’s Sixth Amendment rights can arise from a number of circumstances – including understaffed and underfunded public defender’s offices. And in the statement of interest we filed last year in the case of N.P. v. Georgia, we made a similar case with regard to juvenile proceedings.
These are just a few of the ways that the Department of Justice is working to ensure that the law works for the most vulnerable members of our society, not against them. I am tremendously proud of what we have accomplished over the last eight years. But as we near the end of this administration, I am painfully aware of all that remains undone. I have no illusions that our work is finished. Far too many of our fellow Americans still find themselves priced out of justice. Far too many of our fellow Americans are still forced to choose between paying court fees and paying rent. And far too many of our fellow Americans are one court appearance away from debt, unemployment, or homelessness.
Bringing justice to those who feel excluded and left behind is one of the great civil rights challenges of our times. And the work to meet that challenge begun under this administration must continue into the next. This is not simply a matter of sound public policy – of putting our municipal revenues on surer footing, or of making a sustainable investment in a person’s future rather than spending much larger amounts to keep him behind bars. It is a question of what kind of country we choose to be. Regardless of our political beliefs, we should be able to agree, as Americans, that poverty is not a crime. We should be able to agree, as Americans, that justice is not a commodity to be bought and sold. We should be able to agree, as Americans, that the law should empower the most vulnerable – not oppress them.
Deep down, I believe that all of us subscribe to these basic truths. I believe that we can pass laws and craft policies that embody our highest ideals. But that will not happen automatically. it never has. It will only happen if people like you and I continue fighting for our nation’s oldest principles and its highest ideals. So this evening, I urge you to do just that. I urge you to use your positions of authority and influence to write and to speak on behalf of the voiceless and the marginalized. Devote yourself to making justice a fact for those who until now have only known it as a myth. As we continue in our love of the law, always remember those who do not understand what we are saying to them, and don’t know what to do. Give some of your time to pro bono causes, and challenge your colleagues to do the same. If you are a professor, impress upon your students the urgency of this cause. If you are a student, consider devoting your career to public service.
Above all, no matter your role, never stop insisting on the great truths our forebearers declared to be self-evident more than two hundred years ago: that we are all created equal; and that justice is not a luxury for a few, but the birthright of all.
I want to thank each and every one of you for all that you do to vindicate that promise each and every day. I urge you to keep fighting for a system of justice that is blind to class, color, and creed. And I want you to know that even after I have left the chair of the Attorney General, I will still stand proudly beside you in that effort. Thank you.