Principal Deputy Associate Attorney General Bill Baer Delivers Remarks at Second International Conference on Access to Legal Aid in Criminal Justice Systems

Remarks as prepared for delivery

Thank you, Jennifer [Smith of the International Legal Foundation] for your kind words. 

I want to thank Minister of Justice [German] Garavano, Vice-Minister of Justice [Santiago] Otamendi and Chief Federal Public Defender General Stella Maris Martinez of the Government of the Republic of Argentina, the United Nations Office on Drugs and Crime, the United Nations Development Programme and the International Legal Foundation, for coordinating this important gathering so that we may, together, explore how to strengthen and improve access to criminal legal aid globally.

And equally important, I want to thank all of you – the gathered Ministers, Deputy Ministers, Attorneys General, Supreme Court Justices and criminal legal aid providers and experts – for participating in this conference.  All of the leaders in this room – and so many others across the globe – are indispensable partners in our efforts to fulfill the promise of access to criminal legal aid.  Your work is moving us closer to the ideals of equality, opportunity and justice under law.

The United States participated with enthusiasm at the historic first international convening on criminal legal aid, held in Johannesburg, and it is a privilege to join you in Buenos Aires at the second biannual conference.

Today, with our Presidential election just concluded, I address you not only as an official of the United States Department of Justice, but also as a representative of American democracy.  Since George Washington first relinquished his office to incoming President John Adams in 1797, a peaceful transition of power has symbolized the stability of the United States government.  On January 20, for the 44th time, a President will transfer his authority and responsibilities to his democratically elected successor.  With that transition may come changes in policies and priorities.  That is normal and in the natural course.  But what will not change – what has not changed for over 200 years, from Administration to Administration – is the promise that all people – regardless of wealth or want, status or stature, color or creed – are entitled to a set of undeniable rights:  equal protection, fundamental fairness and impartial justice.

This commitment to equal justice is rooted in the founding ideals set forth in the Declaration of Independence and the Constitution.   It has been enshrined by our Supreme Court in milestone decisions like Brown v. Board of Education, which struck down racial segregation in schools, and Gideon v. Wainwright, which guaranteed that a defendant in a criminal case has the right to a lawyer whether or not that person can afford one.  It has been embraced by Presidents of both parties, as exemplified by the creation of the Legal Services Corporation, the largest funder of civil legal aid for low-income Americans, by President Richard Nixon and President Bill Clinton’s signing of the landmark Violence Against Women Act, which provides legal aid for victims of domestic violence.  And it is embodied in the renewed debate on the criminal justice system, in which Americans from a range of backgrounds and political beliefs have come to agree on the need to address persistent inequities and inefficiencies in our criminal justice system, from the fairness of our sentencing laws, to the injustice in imposing fines and fees against those unable to pay, to how we reintegrate into civic and economic life those individuals convicted of crimes who have paid their debt to society.

Our progress towards fulfilling these promises has not been uninterrupted.  At times, we have made great strides, dedicating resources, energy and ideas to the task.  At other times, we have fallen short of our own ideals.  But with each triumph and setback, we have been reminded that justice is as much a journey as it is a destination – as much a process as it is an outcome – and that the fairest criminal justice system gives equal attention to both.

Addressing this challenge has been a priority of the Department of Justice in the eight years of the Obama Administration.  In 2010, the department launched the Office of Access to Justice – which I oversee and which seeks to improve access to legal aid to everyone in the United States who needs it.  Much of the Office’s work is directed at strengthening criminal defense for the poor by focusing on many of the same values outlined in the 2012 U.N. Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.

Among our most significant accomplishments has been to ensure the reality of Gideon’s promise, for the right to counsel is not only a constitutional imperative but vital to the effective functioning – and legitimacy – of the U.S. criminal justice system.  Fulfilling this promise is not easy.  Between 1999 and 2007, the number of public defenders – the front-line lawyers in our country who provide legal aid to indigent criminal defendants – increased by only four percent while their caseload increased by 20 percent.  When managing such huge caseloads, it is difficult and often times impossible, for public defenders to carry out their legal and ethical duties to their clients.  To help alleviate that problem, the Department of Justice has awarded millions of dollars to cities, states and defense advocacy organizations to support their indigent defense work.  These awards expanded the number of cities that participate in the department’s “Smart Defense” program, where cities use data, research and research partnerships to enhance criminal justice systems and programs.  These funds have also been invested in bringing risk assessment to the pre-trial detention stage, so that judges are making informed pre-trial release decisions that improve cost-effectiveness while protecting public safety and defendants’ due process, and to ensure that our public defenders have the skills necessary to be effective pretrial advocates.   And where states have proven unwilling to dedicate the necessary resources to public defender services, the department has filed amicus briefs in our courts arguing that it is a constructive denial of the constitutional right to counsel for a public defender system to be so under-resourced, so understaffed and so underfunded that an indigent defendant has access to counsel in name only. 
 
The priority on access to criminal legal aid has extended to forging partnerships with American Indian tribes – our nation’s indigenous communities.  As Robert Kennedy rightly noted when he served as Attorney General, it is a tragic irony that the first Americans have endured a long and painful history of broken promises, deferred action and denied rights at the hands of the United States Government.  As one of many steps taken by the Justice Department to right these injustices, we have authored and supported landmark legislation to expand American Indian tribal governments’ criminal jurisdiction and sentencing authority while at the same time enhancing protections for criminal defendants in tribal courts.  To further that effort, the department has worked hard to support tribes through funding and training that improves the trial skills of tribal public defenders as well judges and prosecutors. 

Of course, advancing access to justice for all also requires that we look critically at the Justice Department’s own role – and its own responsibility – as a central player in the federal criminal justice system.  Three years ago, the department launched the Smart on Crime initiative – a groundbreaking effort designed to reorient the way we approach criminal justice issues by diminishing the use of harsh mandatory sentences for low-level drug offenses; investing in rehabilitation and reentry programs that can reduce the likelihood of recidivism; and supporting vulnerable communities to prevent them from being caught up in the criminal justice system in the first place.  Additionally, we have embarked on an historic clemency initiative, allowing the President to commute sentences for more individuals than the last 11 Presidents combined.  And we have worked hard to get the incentives right in ensuring access to counsel in the federal system, including no longer requiring defendants in plea deals to waive future claims about whether their counsel was effective, and no longer allowing an immigrant convicted of a crime to be found deportable on the basis of alleged facts never established in the criminal case – a process unfair to immigrants who lack counsel and who may have agreed to plead guilty specifically to avoid immigration consequences. 

Internationally, we have been proud partners with you on promoting equal access to justice, both in the criminal and civil arenas.  Since the U.N.’s unanimous adoption, just over a year ago, of the 2030 Agenda on Sustainable Development, we have been working with the international community to breathe life into Global Goal 16, which calls on countries – including the United States – to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”  To that end, the White House Legal Aid Interagency Roundtable (LAIR) was formally established. 

The Roundtable works to identify how and when legal aid can improve federal programs that serve our nation’s vulnerable and underserved populations. By integrating civil legal aid into a wide array of federal programs designed to improve access to housing, health care services, employment and education, and enhance family stability and public safety, the programs are strengthened and objectives better met.  This month, the Roundtable will issue its first annual report to the President.  This report will detail the history of this interagency effort and provide concrete examples of how civil legal aid has been integrated into federal programs that support the poor and vulnerable.

The Roundtable’s report will not be our only effort to track the progress toward fulfilling Goal 16 – and specifically Target 16.3, which calls on countries to “promote the rule of law at the national and international levels and ensure equal access to justice for all.”  In September, I announced the United States’ commitment to identifying national indicators for Target 16.3, joining other nations around the world, including in the Americas, who have started regional efforts to identify indicators. The United States’ effort, which is being led by the Department of Justice, and includes experts from across the federal government, will help develop national criminal and civil access to justice indicators so that we can rigorously gauge our progress towards the goal of equal justice for all Americans.   While we are still assessing what these indicators might be, we are exploring whether we can track the impact of criminal and civil legal aid on myriad aspects of the justice system.

And because the United States is so strongly supportive of ensuring quality and effective criminal defense, we introduced the groundbreaking resolution at this year’s United Nations Commission on Crime Prevention and Criminal Justice (UN Crime Commission) that you heard about yesterday to promote access to indigent defense, including through the creation of national, regional and international networks of legal aid providers.  Resolution 25/2: Promoting legal aid builds on past international activity, including the 2012 U.N.  Principles and Guidelines, and on the common sense idea that the best way to improve defense services across the globe is through peer-to-peer exchanges and learning.  The United States stands ready to share its experiences in promoting indigent defense and to learn from yours.

Let me end where I began:  by thanking all of you for your participation in this conference, and for your commitment and perseverance to the work of promoting equal access to justice.  When my predecessor Tony West spoke at the inaugural gathering in South Africa, he was clear-eyed about both the progress that had been made in the provision of the right to counsel and the hard work that remained to be done.  Two years later, I echo Tony’s message.  Global efforts to support the right to counsel have never been stronger.  But we have much left to do. 

Conferences like this one are a beginning not an end.   Long after this conference concludes, after all of us have returned home, after all the keynote speeches have been given and outcome documents adopted, there will remain the work of continuing to build criminal and civil legal systems that deliver the promise of equal justice under law for every individual, regardless of where they were born, their color or class, their religious faith or their sexual orientation.  That work will not be easy.  The progress will not always be uninterrupted.  But rest assured that the United States stands with you in this mutual endeavor.  We will remain an outspoken advocate on the importance of access to criminal legal aid at home and abroad.   We will continue to be a staunch ally in the fight for justice.  And we will remain a steadfast partner in the endeavor to build legal systems that are fair and effective for all.  I look forward to all that we will achieve – together – in the years ahead.  Thank you.