Deputy Attorney General Sally Q. Yates Delivers Remarks at the Right to Counsel National Consortium Second Annual Meeting

Remarks as prepared for delivery

Thank you Lisa [Foster] for that kind introduction and for your extraordinary leadership.  We are all so lucky to have you at the helm of the Office for Access to Justice.

I want to recognize you and all of members of the Access to Justice (ATJ) team for your tireless efforts.  As you many of you know, this office was created by Attorney General [Eric] Holder in March of 2010 to increase access to criminal and civil legal assistance for everyone in this country, regardless of race, wealth or status.  The work this office does is inspiring and central to the mission of this department.  So I want to thank you for all that you do every day and for organizing this important event.

We’ve got a diverse crowd here today, made up of prosecutors and public defenders; law enforcement officers and community stakeholders; legal advocates and community activists.  This diversity is a reflection of the fact that we all have a role to play in working to improve our system of justice and ensure that it lives up to our founding ideals.

That’s especially true for our public defenders.  As a federal prosecutor in Atlanta for over 20 years, I have a lot of experience with public defenders.  I have seen first-hand their relentless dedication to the cause of justice—dedication in the face of difficult and sometimes impossible jobs.  Public defenders are often understaffed and under-resourced, and that's not how our system is supposed to work.  I so admire what you do day in and day out to ensure that an individual’s access to justice isn't determined by how much money he or she has.

As you know, we’re meeting at a unique moment in our history—where a significant consensus is building around the need to reform aspects of our criminal justice system.  For the first time in a long time, people in both political parties are finding common ground.  I’ve spent time with people of all backgrounds, from all across our country, who are working to strengthen our system of justice.  I've talked with correctional officers, inmates, law enforcement officers, public defense advocates, elected officials and community leaders, and despite their differing roles, the common message is clear:  the status quo needs to change.

We're trying to do our part at the Justice Department.  We have directed our prosecutors to stop charging crimes that trigger mandatory minimum sentences for certain low-level, non-violent drug offenders.  We have embarked on an historic clemency initiative, allowing the president to commute sentences for more individuals than the last 11 presidents combined—with many more to come.  And we have significantly bolstered our reentry efforts to make sure that individuals who have paid their debt to society have the tools they need to be successful when they return to our communities.

All of this is important, but as we work to strengthen our criminal justice system, we must remember that a core component of our system is that everyone—regardless of race, class or status—has access to competent counsel.   

More than half a century ago the Supreme Court affirmed the “obvious truth” that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one.  In Gideon, the court recognized that adequate legal representation for the most vulnerable among us is the bedrock of a fair and effective legal system.

While our nation has made progress in removing barriers to quality representation, the unfortunate reality is that, five decades later, the promise of Gideon remains unfulfilled for far too many in our nation.  In every corner of our country, there are public defender systems painfully understaffed and under resourced.  Some offices have had to close their doors to new clients, and others are forced to represent a seemingly never-ending list of clients with too few attorneys to provide quality representation.

The Bureau of Justice Statistics found that, between 1999 and 2007, the number of public defenders increased by only four percent while their caseload increased by 20 percent.  When managing such huge caseloads, it’s difficult, and often times impossible, for counsel to carry out their legal and ethical duties to their clients.

At the department, we are embracing our responsibility to ensure that our country lives up to the promise of equal justice under the law.  For example, in 2012, ATJ launched the Legal Aid Interagency Roundtable, which brings together 22 federal agencies that work to integrate civil legal aid into a wide array of federal programs.  The roundtable has unlocked millions of dollars in federal funds that can be used to connect Americans with legal aid providers to obtain health care, housing, education, employment and other core needs.  In 2015, ATJ supported efforts to prevent the criminalization of homelessness, and earlier this year, the department issued guidance to state and local courts regarding their legal obligations with respect to the assessment and enforcement of court fines and fees to ensure that individuals are not imprisoned for being poor.

The department has also filed four statements of interest or amicus briefs in courts throughout the country arguing a constructive denial of the right to counsel in jurisdictions where public defender systems were so under-resourced, under-staffed and under-funded that they resulted in indigent defendants having access to counsel in name only. 

At the same time, earlier this year, we announced that the department awarded over $3.3 million to cities, states, and defense advocacy organizations to support their indigent defense work.  These awards will expand the number of cities that participate in BJA’s “Smart Defense” program, where cities use data, research, and research partnerships to enhance criminal justice programs and systems.  The funds will also invest in efforts to bring risk assessment to pretrial release decision-making and reentry planning, and to ensure that front-line defenders have the skills necessary to be effective pretrial advocates.

But while all of these steps are important and meaningful, our work is far from finished.  And one area I’d like to discuss today is access to counsel at a bail hearing.

While Gideon and subsequent cases makes clear that the Sixth Amendment guarantees court-appointed counsel to every indigent defendant who faces incarceration, there is still a question of when—how early in the criminal proceedings—the Constitution requires that counsel be appointed. This is especially important when we’re talking about a defendant’s initial appearance before a court, when a judge is likely to decide whether to detain the defendant or release him or her on bail.

In the federal system, the rule on bail hearings is clear:  under the Bail Reform Act, defendants have the right to an attorney—and the right to appointed counsel if they cannot afford one. 

And that makes sense.  The Constitution not only entitles defendants to the presumption of innocence, but also protects them from excessive bail.  Yet many indigent and low-income defendants are unfamiliar with the full extent of those constitutional guarantees.  Without a doubt, some defendants present a flight risk or a danger to the community and should be detained pre-trial.  But others should not.  And given the serious consequences that can flow from pre-trial detention—from losing a job and housing, to missing school, to defaulting on debts—it’s crucial that defendants have counsel advocating for their rights.    

Eight years ago, in Rothgery v. Gillespie County, the Supreme Court held that the Sixth Amendment right to counsel attaches at a defendant’s initial appearance before a magistrate judge—at that important moment where the defendant learns of the charges against him and his liberty is subject to restriction.  But the court has not gone the extra step and stated that a magistrate must appoint counsel for an indigent defendant at that point in the criminal proceedings. 

A number of states have nonetheless taken that step and now ensure the availability of court-appointed counsel when a judge is setting bail.  Other states do not—and it is not uncommon for indigent defendants in some jurisdictions to be held in jail for weeks or months before they are assigned an attorney to advocate on their behalf.  That’s wrong—and it offends our most basic notions of fairness. 

In 1964, Attorney General Robert Kennedy testified before Congress on legislation to overhaul the federal bail system.  He expressed his concern that bail had “become a vehicle for systemic injustice.”  And he diagnosed the problem bluntly, stating that far too many men and women remained in jail simply because they “cannot afford to pay for their freedom.” 

Without a doubt, much has changed since then, both at the federal level and across the states.  But our Constitution prizes the right to counsel in criminal proceedings.  And regardless of whether the Supreme Court determines that the Sixth Amendment requires it, it is clear to me that our nation’s core values demand that all jurisdictions recognize the need for court-appointed counsel at a bail hearing.  Not only is the defendant’s liberty at stake, so too is the fairness of our criminal justice system.

We may be in the closing days of this Administration, but the fight for fairness will continue well into the future.  We hope that others will continue the effort to secure access to counsel—including at bail hearings.  And moving forward, we will keep voicing our ongoing support for both federal and state defender services programs, including appropriate funding and resources.

In Justice Black’s historic Gideon opinion, he observed 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.”  Thank you for what you do every day to make our shared obligation to fulfill that promise a reality.

Thank you.