Acting Associate Attorney General Tony West Delivers Remarks at the American Constitution Society Annual Convention

Thank you [ACS  Board Chair] Peter [Edelman], for that kind introduction; it's such a pleasure to be here with you and all of you at this conference.

And it's an honor to follow Justice Stevens to this podium, a man whose career exemplifies the idea that the majesty of law finds its highest, best use in the service of justice. 

It is an idea ACS strives to make real in the work this organization does in law schools, with law students, lawyers, policymakers and opinion leaders across the country.  As the third-ranking official at the U.S. Department of Justice and one who oversees, among others, the Civil Rights Division, the Office of Justice Programs and the Access to Justice Initiative, I'm grateful for your commitment and honored by your invitation to contribute to today’s discussion about indigent defense.

This year is one in which we reflect on several important milestones in our continuing, collective story to become a More Perfect Union.  For if the arc of history bends toward justice -- and I believe it does -- then it bends not by its own weight but by the hands of those who dare to reach.  And more often than not, those hands are among the most humble. 

Earlier this year we marked the 50th anniversary of the courageous march John Lewis and so many others made across the Edmund Pettus Bridge, only to be met by officially-sanctioned brutality when they made it to the other side.  Fifty years ago this week, Alabama Governor George Wallace stood in the doorway of the University of Alabama in an ultimately futile attempt to block the integration of that university by two, 20-year-old, African American college students, James Hood and Vivian Malone – Ms. Malone, who, in an irony of history, became the sister-in-law of the Nation’s first black Attorney General.  And this week marked fifty years since Medgar Evers, a 37-year old NAACP field secretary organizing the effort to end Jim Crow in his home state of Mississippi, was shot in his own driveway and died on his front steps. 

This year also marked a half-century since Clarence Gideon, a man described as a drifter and petty thief, won his case in the Supreme Court, which established the principle that our Constitution guarantees defendants in criminal cases the right to the assistance of legal counsel, regardless of whether that person can afford an attorney. 

Now, you ask just about any person who’s seen a legal drama on TV and they will tell you they’ve got a right to an attorney even if they can’t afford one.  This idea is so ingrained in our national DNA, so unremarkable to the contemporary ear, that many think its existence was inevitable and is universal.

And yet we know that for too many Americans who are poor, neither is true.  We know that for too many of our fellow citizens, to paraphrase President Kennedy, this Nation, for all its hopes and all its boasts, has yet to fulfill the promise of Gideon’s Supreme Court victory.

Fifty years later, in states and counties across this country, indigent defense providers labor under the weight of insufficient resources, crushing caseloads, and inadequate oversight.  Fifty years later, the vast majority of small county-based public defender offices do not have a single full-time investigator.  And fifty years later, when resources are allocated to the criminal justice system, indigent defense is too often left behind.

In the federal system, budget cuts and sequestration have caused federal defenders to be laid off, furloughed, and left with the responsibility of providing effective representation without funds for experts, interpreters, and court transcripts.  The situation is so dire that one federal judge has openly contemplated simply dismissing criminal immigration cases to mitigate the effect of public defender layoffs in his district.  In New York, federal public defenders requested a delay of the trial of Osama bin Laden’s son-in-law because the federal defenders on that case are required to take furloughs.  And in Boston, federal defenders handling the Boston Marathon bombing case are facing three weeks of unpaid leave.

Fifty years later these problems persist, as do so many others you’ll hear about in the panel discussion that follows.

And yet as serious as these challenges are, we cannot allow them to dampen our resolve when it comes to supporting indigent defense work, because, as Attorney General Eric Holder has said so often, fulfilling Gideon’s legacy and ensuring that millions of Americans have access to the legal services to which they are constitutionally entitled – these are neither optional nor charitable propositions; they are central components of a fair and effective justice system that keeps our citizens safe and maintains its legitimacy in the eyes of everyone it serves.  Supporting the work of public defenders and indigent defense providers is part of our mission at the Department of Justice.

This is why, not long after he assumed office, Attorney General Holder launched the Access to Justice Initiative – or, as we affectionately refer to it, “ATJ” -- an effort to help ensure that everyone can access their constitutional rights, regardless of wealth or status.  With us today are Acting Senior Counselor Deborah Leff and Senior Counsel Karen Lash, both of whom are committed to the work of this initiative and both of whom are tireless advocates for strengthening indigent defense.  Thanks to their hard work and that of their colleagues, ATJ continues to engage a broad range of partners both within and outside the federal government to increase access to quality representation, promote best practices, and recruit new allies to this vital work.

And ATJ is just one part of what may be the Justice Department’s most significant and sustained commitment to indigent defense since Robert Kennedy’s tenure.  Under Attorney General Holder’s leadership, we have, over the last four years, committed more than $24 million in grants, initiatives, and assistance to support indigent defense work around the country.  This past March, the Attorney General announced another nearly $2 million in new initiatives for fiscal year 2013, efforts that will help us to:

• Build on ongoing efforts to help local and state communities improve the capacity of their indigent defense delivery systems and enhance their ability to provide quality representation to indigent defendants through our “Answering Gideon’s Call” grants;

• Augment our work to enhance the quality of juvenile indigent defense representation;

• Assist states and locals with the implementation of innovative strategies that incorporate the ABA’s Ten Principles of a Public Defense Delivery System; and

• Increase our knowledge base about what’s going on in those systems.  We don’t know, for example, how many individuals in state courts end up with a conviction because they jump at a plea deal without ever having the opportunity to see a lawyer who can help them understand the consequences of making a life-altering decision, and gathering more data will help us improve service delivery.

The commitment is also evident in the leadership personnel decisions the Attorney General has made.  I’m proud, for instance, that the Department has a top-notch defender in a top-level position.  Robert Listenbee, who joined the Office of Juvenile Justice and Delinquency Prevention as Administrator earlier this year, was a trial lawyer at the Defender Association of Philadelphia and served as chief of its Juvenile Unit.  So you know that the issue of juvenile access to counsel is going to get close attention under his leadership.

And yet, even though our commitment to indigent defense is significant, we know that it’s not enough.  And, candidly, the efforts of the Justice Department alone will never be enough.  We know that the need is greater and that a fundamental impediment that cripples indigent defense systems throughout the country is the lack of adequate resources.  We know this.  But we also know that, given the fiscal realities exacerbated by the impacts of sequestration, a strategy that focuses primarily on lamenting the lack of resources will yield limited success.

So we must be creative in our approach.  We must seek opportunities to recalibrate the machinery of our criminal justice system in ways that will allow us to enhance indigent defense and, while continuing to highlight the need for greater resources, recognize that there are worthwhile strategies apart from funding that we can and should pursue to help us fulfill Gideon’s promise.

Let me offer four such strategies as an example.

First, we must redouble our efforts to collaborate. Under the Attorney General’s leadership, several U.S. Attorneys across the nation have begun to regularly meet with federal public defenders and appointed defense counsel to address issues of mutual concern.  Here in Washington, for example, the Department has worked closely with federal public defenders, counsel appointed under the Criminal Justice Act, and judges to develop best practices for handling electronically stored information, or ESI, during the discovery process. 

ESI, as many of you know, can present a myriad of challenges for an underfunded public defender.  The collaborative effort on which we embarked led to the new ESI Protocol designed to ensure that indigent defendants and their counsel can access a potentially vast quantity of digital information in order to present their defense despite a shortage of defense resources.

We must expand collaborations like this, such as through joint defense and prosecution training opportunities, and we must engage our state prosecution, defense and judiciary counterparts, as well, especially in rural areas around the country.  Where we can, we should share and replicate those collaborative solutions we find that are working, and we should encourage such collaboration at the state and county level through the appropriate use of our litigation tools and authorities. 

Second, we must augment efforts to integrate the indigent defense community in those critical decisions that allocate JAG and other criminal justice funds.  We know from a 2012 GAO report that JAG grantees with indigent defense representatives as part of the fund allocation decision making process were more likely to provide funding for indigent defense.  So we are continuing to work at the Department to promote increased representation of the indigent defense community by requiring JAG applicants to identify the stakeholders they are including in their strategic planning process. 

Third, we have to continue to consult.  Attorney General Holder has repeatedly met with members of the indigent defense bar and will so again at the end of this month.  Later this month, I will also sit down with representatives from the indigent defense community, along with Karol Mason, the new AAG of OJP.  We need to continue to hear from folks who are working in the field day in and day out as to how we can keep making progress.

Consultation also means listening to indigent defense clients to help us understand how to better meet their needs, which is why it’s important that some of the money we’re spending to gather data about our indigent defense systems will be used to better understand the client population, especially juveniles and those who suffer from mental illness, so that we can better meet their needs. 

Finally, we need to continue examining our own enforcement authorities for opportunities to help ensure the right to counsel is being upheld.  Last December, for example, the Department for the first time used its authority under 42 USC § 14141 to address constitutional violations within a juvenile justice system.  Our Civil Rights Division entered into a groundbreaking agreement with the Juvenile Court of Memphis and Shelby County, Tennessee, that required the Shelby County Public Defender’s Office to establish a dedicated juvenile defender unit in the public defender’s office that will be independent of the court and have the structure and resources necessary to provide independent, ethical, and zealous representation for children.

And we’re not stopping with Shelby County.  In Meridian, Mississippi, we have filed suit against the city, Lauderdale County, two Youth Court judges and the state of Mississippi, alleging that they are incarcerating youth for committing minor offenses, including school disciplinary infractions, and punishing them disproportionately without due process of law.  Among other things, our investigation revealed that:

• Children were making admissions to formal charges without being advised of their rights and without making an informed waiver of those rights;  and that

• Lauderdale County does not consistently afford children meaningful representation by an attorney during the juvenile justice process, including in preparation for and during detention, adjudication and disposition hearings.

Of course, even these efforts, by themselves, will not be enough.  But they are important steps to help us fix a broken indigent defense system in this country.

One of the best films I’ve seen this year is Gideon’s Army, which chronicles the commitment and perseverance of public defenders trying to bring some modicum of justice to individuals caught in a broken indigent defense system.  Their dogged persistence is public service at its best, and it reminds the rest of us that while these challenges are real and they are hard, and even though what we are doing won’t be a panacea that fully meets the challenge, we can’t give up. 

Today, Gideon's humble, handwritten petition, penciled on prison stationary, sits in the United States National Archives, along with the Declaration of Independence, the Bill of Rights and the Emancipation Proclamation.  And if our American Experience teaches us anything, it is that the struggle to make real those aspirational promises is ongoing; that justice is as much a journey as it is a destination – that it is as much a process as it is an outcome – and that we must pay equal attention to both