Head of the Civil Rights Division Vanita Gupta Delivers Remarks at the Right to Counsel National Consortium Second Annual Meeting

Thank you, Lisa [Foster], for that kind introduction and for your outstanding leadership of the Office for Access to Justice.  I also want to thank Deputy Attorney General [Sally Q.] Yates, Assistant Attorney General [Karol] Mason and Denise O’Donnell for their inspiring words today and their tireless efforts to make justice accessible for all.  And I want to thank all of you – advocates, policymakers and public officials – for your firm commitment to enforcing the right to counsel and protecting the integrity of our justice system.

Throughout the Civil Rights Division’s policing work – just like we found through our investigation of the Ferguson, Missouri, Police Department and Municipal Court last year – we see how breakdowns in community-police trust often have broader causes, such as distrust in public institutions or even government itself.  This often happens when people believe that the justice system does not function equally for low-income communities and communities of color as it does for others.  But we know that when the justice system does live up to the ideal of equality under the law – an ideal that requires ensuring a meaningful right to counsel – courts can also serve as a check on unconstitutional policing.  And courts can help restore trust in public institutions.  Simply put, public trust requires faith in the legitimacy of our justice system.  And public trust requires that people believe that our public institutions provide justice and fair treatment.

The right to counsel embodies a core truth of our justice system.  It makes real the notion of fairness under the law.  And it affirms the ideal that all people – regardless of wealth or poverty, status or stature, color or creed – deserve equal treatment and equal protection.  More than half a century ago, at the urging of Clarence Earl Gideon, the Supreme Court declared that a fair trial requires the right to counsel.  Yet even today, we still see a real gap – with devastating consequences – between what the Supreme Court ruled in Gideon v. Wainwright, on one hand, and what poor defendants experience in the courts, on the other.  For too many people in this country, Gideon is a promise unfulfilled and unrealized.  In too many communities, indigent defense is in crisis.  And the right to counsel is observed in name only.

When defendants lack meaningful access to counsel early in the process, it perpetuates inequities throughout the justice system.  So many of the problems we face in the criminalization of poverty – including harmful and unlawful fine, fee and bail practices – arise from people with limited means unable to effectively navigate our legal system.

Let us make no mistake – public defenders work tirelessly on behalf of some of the most vulnerable among us.  But if due to underfunding and high burdens, they can’t perform core functions of their jobs, people living in poverty suffer.  Entire communities – indeed, our justice system itself – suffers.  And our country falls short of its founding ideals.  The Justice Department is doing what we can to shine a light on the right-to-counsel crisis playing out at the state and local level.  In courts around the country – from Washington, to New York, to Pennsylvania, to Georgia, to Idaho – the Civil Rights Division and Access to Justice have argued that if public defenders can’t talk confidentially with their client, investigate the allegations and meaningfully test the prosecution’s case, that can violate the Sixth Amendment.

Take the story of James Adams, one of the plaintiffs in Hurrell-Harring v. State of New York.  After he allegedly stole sticks of deodorant from a Rite Aid drugstore, police arrested him on charges of felony robbery and burglary.  He faced up to 14 years in prison.  With bail set at $2,500, which he couldn’t afford, he sat in jail for more than three months.  He never saw his attorney outside of open court.  And at one of his court appearances, the attorney didn’t even bother to attend.  According to the complaint, his arrest and incarceration caused him to lose his job.  With no job, Adams couldn’t support his family, and so they couldn’t pay their rent.  And that led to eviction.

Just weeks after the Justice Department filed its statement of interest, New York reached a comprehensive settlement agreement with the plaintiffs to implement transformative reforms to its public defense system across five counties in the state.  Reforms like guaranteeing that indigent criminal defendants will have legal counsel at arraignments.  And establishing caseload and workload standards for public defenders to ensure they can adequately serve each client.

In the juvenile justice system as well – from Missouri, to Mississippi, to Tennessee – we’ve worked to enforce the right of access to counsel for all children.  Far too often, children living in poverty, children with disabilities and children of color get stuck in the juvenile justice system and find themselves on a pipeline to prison.  In Shelby County, Tennessee, our work led to a transformative settlement agreement and a specialized juvenile defender’s office.  The office continues to build its capacity, providing more youth in need with attorneys who have reasonable workloads and effective training.  In Meridian, Mississippi, our agreement with the city prevents police officers from interviewing detained youth without an attorney or guardian present.  It also mandates that officers inform children of their Miranda rights as soon as the youth reasonably believes he or she cannot leave freely.  And our agreement with the state youth probation agency requires that staff notify children of their right to counsel at probation revocation hearings, among other protections.

As I mentioned earlier, the challenges we see in indigent defense – namely that people living in poverty lack access to justice – do not result in a vacuum.  The constructive, systematic denial of one’s Sixth Amendment right to counsel can lead to other practices that criminalize poverty.  Earlier this year – recognizing that some of the problems we identified in Ferguson plagued justice systems in cities and towns across the country – we sent a dear colleague letter to state and local judges to help them guard against unlawful fine, fee and bail practices that can result in an inescapable cycle of debt and incarceration.  Our letter explained that courts must provide meaningful notice and, in appropriate cases, counsel when enforcing fines and fees.  We’ve also filed briefs arguing that if bail practices result in jailing people because of their poverty, without consideration of their ability to pay or alternatives to incarceration, such practices violate the Constitution.  And in an Idaho case last year, we argued that because every human being must sleep at some time and in some place, punishing a person for sleeping in public – when she has nowhere else to go – criminalizes homelessness.  It violates the Eighth Amendment.  And it does nothing to break the cycle of poverty.

So we at the Justice Department are well aware that there’s a crisis in the way people living in poverty experience our justice system.  And we are committed to doing what we can to address that crisis.  But there is much more work to be done.  To take just one example, as the Deputy Attorney General said this morning, part of the answer is a recognition, across the country, of the need for court-appointed counsel for the indigent at bail hearings.

All of us in this room know that laws and decisions alone do not vindicate rights.  People do.  People like you and your colleagues do.  People like Clarence Earl Gideon – people living in poverty and yearning for justice – do.  And while we have much progress to take pride in over the last few years, none of us can afford to settle for a justice system that works only for some people in our country.  Looking around this room, I know none of us will settle.  Thank you for all that you do to ensure that we live up to our founding ideal of equal justice for all.