Skip Navigation

Attorney General Eric Holder on Indigent Defense Reform

The Hon. Eric H. Holder was the recipient of a Brennan Legacy Award on Nov. 16, 2009; his speech, transcribed here, focuses on the necessity of reforms for indigent defense, and the current state of our public defender networks in the United States.

Published: November 18, 2009

The follow­ing are prepared remarks of Attor­ney General Eric Holder at the Bren­nan Legacy Awards Dinner. The Hon. Eric H. Holder was the recip­i­ent of a Bren­nan Legacy Award on Nov. 16, 2009; his speech, tran­scribed here, focuses on the neces­sity of reforms for indi­gent defense, and the current state of our public defender networks in the United States. 

Holder was intro­duced by Bren­nan Center board chair James E. John­son



Thank you, Jim, for that wonder­ful intro­duc­tion. It’s always a pleas­ure to be intro­duced by a great lawyer, an old friend, and a person commit­ted to the ideals of this wonder­ful insti­tu­tion.

I also want to thank the lead­er­ship of the Bren­nan Center for Justice for honor­ing me with this award. Let me also congrat­u­late my co-honoree and friend, Nicole Selig­man, for the award she is receiv­ing tonight. Nicole, thank you for all you do—y­our award is well deserved.

I also want to congrat­u­late and commend the members and support­ers of the Bren­nan Center for your dedic­a­tion to demo­cracy and the rule of law. You have been lead­ers in the effort to modern­ize voter regis­tra­tion—that is, to remove the single biggest barrier to voting in the United States, our anti­quated regis­tra­tion system.

You also have worked hard to protect voting rights through your lawsuits and advocacy, and you have provided us with crit­ical support in our determ­ined effort to defend campaign finance reform legis­la­tion.

In these and other issues—­from access to justice to racial justice, to ensur­ing that we advance the rule of law as we defend our national secur­ity—please know that we hear you in Wash­ing­ton, we respect your views, and we appre­ci­ate your engage­ment.

Now, as many of you know, Justice Bren­nan came from humble begin­nings. The son of Irish immig­rants, he epitom­ized the Amer­ican dream, grow­ing from a boy who delivered milk and pumped gas to become one of the most renowned and influ­en­tial Supreme Court Justices of our time. Through­out his illus­tri­ous career, Justice Bren­nan never forgot where he came from. He cred­ited his interest in indi­vidual rights and civil liber­ties to his upbring­ing and the hard­ships he witnessed in his own neigh­bor­hood.

Justice Bren­nan’s legacy—his work and the way he approached it—em­bod­ies our collect­ive respons­ib­il­ity to those who do not always have a voice in the legal and policy decisions that impact our communit­ies. You honor his legacy not only in your crit­ical work for justice, but with this annual reminder to all of us to strive toward real­iz­ing the values of equal­ity and common human dignity that motiv­ated Justice Bren­nan.

“Equal­ity and common human dignity.” Justice Bren­nan knew that these values, although lofty, are attain­able. I want to use our time together tonight to reflect on a chal­lenge—a really diffi­cult chal­lenge—that calls for our ongo­ing, collect­ive commit­ment to these values: the need for indi­gent defense reform. Given the Center’s work in New Orleans, Michigan and else­where, as well as your public­a­tion of help­ful resources such as the Guidelines for Appoint­ing Defense Coun­sel, I know that this is an issue about which you care deeply, as do I.

Imagine with me for a few moments that you receive a frantic call saying that your son or daugh­ter, niece or nephew, has been arres­ted and charged with a crime. I would wager that most of you would make a call and hire a great lawyer. You certainly would never allow your child to plead guilty and face the possib­il­ity of jail time without first speak­ing to a lawyer. You would not stand by if someone in your family was made to wait weeks, even months, before getting access to a lawyer who could fight for his or her release.

But, hard as it may be to believe, some of our fellow citizens suffer through circum­stances like these every single day.

A recent report commis­sioned by a joint resol­u­tion of the Michigan state legis­lature, for example, found counties in the state where defend­ants are charged and plead guilty to crimes that carry jail time without ever speak­ing to a lawyer. In other parts of the coun­try, accord­ing to another report, defend­ants may sit in jail cells for weeks, even months, wait­ing for a lawyer. In one example, a 50-year-old woman charged with shoplift­ing spent 11 months in jail wait­ing for a lawyer to be appoin­ted. Another woman charged with steal­ing $200 from a slot machine spent 8 months in jail before receiv­ing a lawyer.

Even when coun­sel is appoin­ted the appoint­ment is often­times not mean­ing­ful, not truly effect­ive. The most recent compre­hens­ive national study on the state of indi­gent defense docu­mented a Missouri county where the public defend­ers office star­ted to refuse cases after its lawyers began aver­aging 395 cases a year, caus­ing the State Public Defender Director to acknow­ledge publicly that with case­loads that high, mistakes were being made.

In Tennessee, a county public defender office had six attor­neys handle more than 10,000 misde­meanor cases in 2006—which means lawyers could spend an aver­age of just under an hour per case. High case­loads leave even those lawyers with the best of inten­tions little time to invest­ig­ate, file appro­pri­ate motions, and do the basic things we assume lawyers do. Some don’t even have time to go to trial.

High case­loads are not the only prob­lem. Although Gideon was decided more than 45 years ago, there are still seven states in this great nation that contrib­ute noth­ing to trial-level public defense, putting the burden on their counties. Because of a chronic lack of resources, many counties, in turn, rely on so-called “flat-fee” contracts that pay lawyers the same amount regard­less of how much (or more likely, how little) time the attor­ney spends on each case. Indeed, in states like Utah and Pennsylvania that rely entirely on indi­vidual counties to fund indi­gent defense, the qual­ity of legal repres­ent­a­tion that a defend­ant receives may end up being determ­ined by the side of a county line on which the crime was commit­ted.

In addi­tion to resource prob­lems, many public defender offices have insuf­fi­cient inde­pend­ence or over­sight to ensure that the lawyers are effect­ively repres­ent­ing the interests of the accused. In some places judges assign cases to lawyers, which can influ­ence the repres­ent­a­tion the lawyers provide. For example, a statewide survey of Nebraska judges in 2006 raised such concerns, includ­ing about judges who refused to reappoint those lawyers who reques­ted too many trials.

Perhaps most troub­ling, all too often we’ve seen similar prob­lems in juven­ile systems. In 2005, for example, the Flor­ida Supreme Court found that in one Flor­ida Circuit, three out of four youth waived the right to coun­sel and faced charges without the guid­ance of coun­sel. What is more, such waivers some­times occur without the oppor­tun­ity to speak to coun­sel who might help young people under­stand what they’re giving up.

For me, this is an issue of personal import­ance and national conscience. As a judge, I saw firsthand how ill-equipped and unpre­pared defense coun­sel distort the entire system.

Ours is an adversarial system of justice—it requires lawyers on both sides who effect­ively repres­ent their client’s interests, whether it’s the govern­ment or the accused. When defense coun­sel are handi­capped by lack of train­ing, time, and resources—or when they’re just not there when they should be—we right­fully begin to doubt the process and we start to ques­tion the results. We start to wonder: Is justice being done? Is justice being served?

The integ­rity of our crim­inal justice system aside, the crisis in indi­gent defense is also about dollars and cents. An analysis conduc­ted by the State Appel­late Defender Office in Michigan found that the state’s fail­ure to invest resources at the trial court level has contrib­uted to the costly impris­on­ment of defend­ants whose convic­tions were later reversed. The office repor­ted that since 1996, there have been approx­im­ately 50 success­ful habeas corpus actions based on inef­fect­ive assist­ance of coun­sel claims in state court proceed­ings.

Even assum­ing these defend­ants were guilty of the crimes for which they were origin­ally convicted, the public still must bear the cost of appeals and retri­als because the system didn’t get it right the first time. And for those cases in which the defend­ants were not guilty, then obvi­ously the price tag is much higher­—both in the ulti­mate night­mare scen­ario of send­ing an inno­cent person to jail, and in terms of letting the person who actu­ally commit­ted the crime remain free.

Let me give you just one example of all of the losses asso­ci­ated with the crisis in repres­ent­a­tion. Eddie Joe Lloyd served nearly 17 years in a Michigan prison for the murder and rape of a young girl—crimes that DNA evid­ence later proved he did not commit. Lloy­d’s appoin­ted attor­ney­s—one replaced another a week before trial—­failed to conduct any invest­ig­a­tion. No one ever cross-examined the police about Lloy­d’s false confes­sion—which Lloyd gave to the police while he was a non-volun­tar­ily commit­ted patient in a mental health hospital. No one ever inter­viewed Lloy­d’s family or his doctors. No one visited the crime scene, or chal­lenged Lloy­d’s compet­ence. The appeals and the 17 years of impris­on­ment cost Michigan nearly a million dollars, and that amount does not include the $4 million civil judg­ment Lloyd later obtained for his wrong­ful convic­tion. And of course there is the real danger to the community of having the actual murderer and rapist remain at large some 20 years later.

So, what is to be done? In order to fulfill the prom­ises of Gideon and Gault, we need the engage­ment of part­ners at the federal, state, and local levels, both within and outside of govern­ment. Much good work has already gone into devel­op­ing model stand­ards for public defense systems, includ­ing the Amer­ican Bar Asso­ci­ation’s Ten Prin­ciples of a Public Defense Deliv­ery System and the National Juven­ile Defender Center’s Ten Core Prin­ciples for Provid­ing Qual­ity Delin­quency Repres­ent­a­tion Through Public Defense Deliv­ery Systems[pdf]. I am grate­ful for organ­iz­a­tions like the Bren­nan Center that are on the front lines of this effort, whether it is through educa­tion or litig­a­tion.

I want to emphas­ize educa­tion, because I believe that if more Amer­ic­ans knew more about how some of their fellow citizens exper­i­ence the crim­inal justice system, they would be shocked and angered.

I am also encour­aged by the fact that some states and local juris­dic­tions have begun to do the hard work to ensure that their public defense systems have the inde­pend­ence, over­sight, and resources needed to oper­ate effect­ively. In Nevada earlier this year, for example, the state Supreme Court issued an order call­ing for wide­spread changes in the public defense system, includ­ing requir­ing attor­ney perform­ance stand­ards and remov­ing judges from the appoint­ment process. In April, New York City became the first city to commit to phase in caps on case­loads for public defend­ers. The state legis­lature in Michigan—where Eddie Joe Lloyd was convicted—will soon consider proposed legis­la­tion to estab­lish there for the first time a statewide public defense system.

At the Depart­ment of Justice, I have convened an internal work­ing group to help me identify ways we can do our part in this effort. I’ve instruc­ted them to leave no stone unturned in identi­fy­ing poten­tial fund­ing sources, legis­lat­ive initi­at­ives, and other ways we can work with our state and local part­ners to estab­lish effect­ive public defense systems. I have person­ally met with lead­ers from the indi­gent defense community to learn more about the prob­lem and to get their advice and ideas on ways the Depart­ment can help. And our Office of Justice Programs is currently plan­ning a national indi­gent defense confer­ence in Febru­ary that will bring together public defend­ers from all 50 states.

As I have said before, every day, conscien­tious prosec­utors around the coun­try do justice on behalf of the Amer­ican people, often under very trying circum­stances. We owe them our sincere grat­it­ude for their hard work and their sacri­fices on our behalf. But our system of justice cannot depend on them alone.

Justice Bren­nan once said, “We must remem­ber that soci­ety’s interest is equally that the inno­cent shall not suffer and not alone that the guilty shall not escape.” Let us ensure that we further Justice Bren­nan’s legacy by main­tain­ing the most basic consti­tu­tional protec­tion—the right to have truly effect­ive defense coun­sel. In the past few days, with the stakes at their highest, I have expressed great faith in our crim­inal justice system. As great as it is, we need to signi­fic­antly improve the qual­ity of repres­ent­a­tion that is provided in that system to the poor and the power­less. Let us truly dedic­ate ourselves to the legacy of Justice Bren­nan by work­ing to reform that system so that it truly reflects those most basic of Amer­ican values: equal­ity and fair­ness. The prob­lems I have mentioned are man made. They are, there­fore, suscept­ible to man made solu­tions. Together, I am confid­ent that we can create a system that is both consist­ent with our found­ing docu­ments and of which we can truly be proud. I look forward to work­ing with you in that effort.

Thank you.

Eric Holder, Attor­ney General of the United States 

SOURCE: U.S. Depart­ment of Justice