It’s no secret that public defender offices across the country face a host of challenges in providing legal counsel to indigent defendants. But what can and should the federal government do to address those problems?
According to Laurence Tribe, the former Harvard law professor who in February was tapped to lead the Justice Department’s newly formed Access to Justice initiative, the answer could in part come from Big Law pitching in more frequently on a pro bono basis.
The question of how to bolster the indigent defense system was before a panel of legal experts today at the American Constitution Society’s annual conference. The panel, titled “The Federal Role in Improving Indigent Criminal Defense,” kicked off with remarks from Stephen Bright, president and senior counsel at the Southern Center for Human Rights in Atlanta, Ga. Bright outlined a series of problems facing the criminal justice system: a lack of a “true adversarial system” in many parts of the country, ineffective indigent defense programs, the use of the process to punish people unduly, and “no real way to put a check on the process.”
“The criminal justice system in this country is trapped in a downward spiral, and we face tremendous challenges in trying to do something about it,” Bright said.
Tribe said that he agreed with Bright about the scope and scale of the problems facing the criminal justice system. But he said DOJ is already taking steps to make improvements. Tribe said that he and his colleagues have been traveling the country, speaking with state chief justices about having them put pressure on jurisdictions in their respective states to provide improved access to competent counsel for indigent defendants.
Tribe said he has also been speaking with private law firms about having them step up the level of involvement associates have in pro bono cases.
“We have an incredibly wealthy private bar in this country that hasn’t done as much pro bono work for indigent clients as it could,” Tribe said. “In the wake of the economic crisis, firms are finding that the lockstep promotion of associates no longer makes sense and are beginning to promote them based on core competencies. Well where are they going to get those competencies? Why not by working on pro bono efforts?”
Tribe said that another thing his agency is doing is speaking with federal circuit judges about giving firms with exceptional pro bono records more public “pats on the back.” That public recognition, Tribe said, goes a long way in getting more firms involved in pro bono efforts.
Judge Paul Friedman of the U.S. District Court for the District of Columbia said he has seen evidence of that trend here in Washington. “What happens is that law firms get to go to an event where they are recognized, they can bring associates to show them they’re being honored. Legal Times writes about them. And for those firms that aren’t on the list of honorees people begin asking why they aren’t included. It really does go a long way,” Friedman said.
Jo-Ann Wallace, president and chief executive officer of the National Legal Aid & Defender Association, recommended that Tribe also speak with law enforcement officials, local governments, and civil rights organizations across the country because “there is still a lot to be done at all levels.” Wallace noted that it is often cheaper to provide competent counsel at the beginning of a criminal justice proceeding than it is to have to pay for subsequent appeals and improper imprisonments. “You might also point out that out that it’s a way to prevent crime and in turn get reelected,” Wallace told Tribe.
Erik Luna, a law professor at Washington and Lee University School of Law, argued that the federal government should not have a role in state criminal justice systems because it often “exacerbates the problem more than it fixes it.” Luna said that by eliminating federal funding to state prosecutors and to public defender programs it would force state governments to reduce the number of people who are arrested and tried.
“State governments could also try decriminalizing certain offenses and raising taxes to account for the lost funding. But these options are never mentioned because they’re seen as bad politics,” Luna said.
Tribe said he agreed that part of the problem is the number of people who are arrested and tried. But he said that saying the federal government has no responsibility to ensure the rights of individuals would “undo the Civil War.”
That said, Tribe invited the panelists and the audience to send any ideas or possible solutions to him at the Justice Department. “I’m one of the few people in the Justice Department who can be reached easily,” Tribe said.