Attorney General Eric Holder Speaks Out on the Need to Address the Crisis in Indigent Defense

In several speeches in recent months, Attorney General Eric Holder has emphasized the need to reform the indigent defense system if the country is to uphold its promise of “equal justice for all.”

Before the American Council of Chief Defenders on June 24, 2009, Attorney General Holder discussed the current crisis in indigent defense and outlined the steps the Department of Justice will take toward reform:

"Ten years ago, when I was Deputy Attorney General, I worked with Attorney General Janet Reno to begin a national dialogue on indigent defense.   We brought together the defense bar, prosecutors, judges, and others to talk about the crisis in our public defense system and to explore solutions.   We held two national conferences – one in 1999 and one in 2000 – during which Janet and I helped NLADA launch the American Council of Chief Defenders.   

Yet despite this promising start a decade ago, it is clear to me that the crisis in indigent defense has not ended. And the Justice Department has not remained an active part of the conversation about indigent defense in recent years. Groups like you have been carrying the mantle, but you should not have to carry it alone. When I took the oath of office as Attorney General, I swore to support and defend the Constitution of the United States. Supporting and defending the Constitution includes, in my view, a responsibility to serve as guardians of the rights of all Americans, including the poor and underprivileged.

Now, the obstacles to representing the indigent are well-known. We know that resources for public defender programs lag far behind other justice system programs – they constitute about 3 percent of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers often receive compensation that doesn’t even cover their overhead. We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. We hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course. Finally, we know that there are numerous institutional challenges in public defense systems, like budget shortfalls.

These challenges are not new. Justice Hugo Black saw the problem 45 years ago and wrote that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” What can be done?"

• First, I want to resume the dialogue that we started a decade ago . . . .

• Second, I want to expand and sustain today’s conversation by holding regular meetings with the criminal defense bar . . . .

• Third, I want to make sure that public defenders are at the table when we meet with other stakeholders in the criminal justice system . . . .

• Fourth, we will expand our commitment to collect accurate and meaningful data on public defense programs, so as to be better equipped to help them . . . . 

• Fifth, and finally, the Department will host a national conference focusing on issues relating to indigent defense . . . . 

Let me end by going back to first principles. Justice Black, the author of Gideon, himself came from very humble origins. He was born in poor, rural Harlan, Kentucky, and he often referred to himself as “just a Clay County hillbilly.” Yet he was one of the most eloquent spokespersons for equal justice in our nation’s history. Twenty years before Gideon, he made his principled dissent in the Betts case. He said: “A practice cannot be reconciled with common and fundamental ideas of fairness and right which subjects men to increased dangers of conviction merely because of their poverty.” Two decades would pass before that principle found a place in his opinion for the majority of the Court in Gideon. Justice Black must have felt great frustration in those 20 years between Betts and Gideon, but progress eventually came with time and perseverance. Another 45 years have passed since Gideon, and the promise of Gideon remains not fully fulfilled. It’s our responsibility to continue to work toward realizing the principle that Justice Black described and worked for. Justice shall not be done until we do. I look forward to working with all of you." 

On July 9, 2009, at the Vera Institute of Justice, Attorney General Holder discussed the need for a “smarter and better criminal justice system,” and repeated the need to reform the provision of indigent defense:

" . . . .  This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel. When defendants fail to receive competent legal representation, their cases are vulnerable to costly mistakes that can take a long time to correct. Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors. When that happens, no one wins. Addressing the American Council of Chief Defenders last month, I committed to several steps to help improve the indigent defense system, including hosting a national conference with the goal of developing a set of best practices and practical solutions . . . .  

Many of the things I have mentioned in these remarks are still in early stages or under review. There are numerous areas I have not even mentioned – for example, the prevention and detection of economic crimes and on-line crimes – where we can similarly get smarter with a research-driven approach. I am already certain, however, that change is both necessary and it is possible – if we are willing to make it. Challenges have changed with time: Prison populations are at an all-time high and still climbing, yet the crime rate is no longer declining. States are in serious financial distress. But opportunities have changed too. We are able to compare the cost and suitability of different criminal justice strategies. We no longer must choose between more crime and more prisons: we can reduce crime rates and reduce our dependence on incarceration, and at the same time increase the integrity of our criminal justice system. We can harness science and data to tackle emerging problems and also to preserve our foundational principles. The more we know, the better we can do, the more sophisticated we can be. With the help of the scholars and experts in this room, state and local law enforcement, corrections officials across the country, judges, victims of crime, and always with the fine work of attorneys at the Department of Justice, there is no question that a smarter and better criminal justice system is within our grasp."

At a celebration of the 100th anniversary of the NAACP, Attorney General Holder again discussed the critical reforms that must be made to create a more equitable criminal justice system:

" . . . . As the NAACP celebrates its centennial convention, we pay tribute to its unwavering demand that our nation honor the truth contained in the document that declared its independence: 'that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.'

. . . .  [W]e must keep working to build a more effective, more efficient, more equitable system of criminal justice. A system of justice that focuses not just on punishing criminals, but also on preventing crime. A system of justice that focuses not just on locking people away, but also on integrating former offenders back into their communities so they can build productive, law-abiding lives. And, a system of justice that applies the same penalties for offenses involving cocaine – regardless of its form.

I have seen first-hand the effect that disparities in drug sentences have had on our communities. In my career as a prosecutor and judge, I saw too often the cost borne by the community when promising, capable young people sacrificed years of their futures for non-violent offenses. Let me be clear: the Department of Justice will never back down from its duty to protect our citizens and our neighborhoods from drugs, or from the violence that all-too-often accompanies the drug trade. But we must discharge this duty in a way that protects our communities as well as the public’s confidence in the justice system.

It is not justice to hand down disparate prison sentences for materially similar crimes. It is not justice to continue our adherence to a sentencing scheme that disproportionately affects some Americans, and some communities, more severely than others. Our goal is simple: to ensure that our sentencing system is tough and predictable, but also fair.

We must also keep working to ensure that the Justice Department’s Civil Rights Division has the tools it needs to defend the hard-won progress of the civil rights era, progress that the NAACP fought so hard to achieve. Four months ago, I traveled to Selma, Ala., to help commemorate the forty-fourth anniversary of Bloody Sunday. I promised then that the Civil Rights Division would live up to its 'long, proud history;' that it would 'fight discrimination and inequality just as fiercely as the Criminal Division fights crime;' in short, that it would 'reflect the spirit of the movement that inspired its creation.' This has been one of my highest priorities since my return to the Justice Department and I remain committed to providing the Civil Rights Division with the attention, the resources, and the leadership that its dedicated professionals deserve. Today, I can proudly report that the Civil Rights Division is back and is open for business . . . .

The answers to many of the problems that confront some of our nation’s most vulnerable communities of color can be found within those very communities. We must be prepared to ask ourselves difficult questions and to face tough truths. We must be prepared to do what is necessary to justify our parents’ and grandparents’ investment in the struggle for civil rights. We owe this to the people and to the organization that we honor here today . . . ."