Laurence Tribe, senior counsel for Access to Justice. (photo by Channing Turner / Main Justice)
The Department of Justice’s Access to Justice initiative will encourage federal and state officials to use the bully-pulpit to push for more effective defense of indigent criminals.
As part of a panel on the issue at the American Constitution Society’s National Convention Saturday, DOJ Senior Counselor Laurence Tribe said his initiative will work with federal officials and chief justices on the state level to raise pressure for changes public defense programs. He also expressed approval for lawsuits and private action through Section 1983 in cases of ineffectual counsel.
Tribe — a more than 40-year law professor at Harvard turned senior counsel for the Justice Department — has spoken several times in the past week on the crisis of indigent defense, cataloging a myriad of obstacles low-income Americans face in the civil and criminal justice system. However, Tribe adopted a more hopeful demeanor Saturday when talking about solutions the government might pursue under his initiative.
“If you actually want to make progress…we need to have a central narrative that is a little more hopeful because otherwise people will just throw up their hands and give up,” he said. He stressed a “more political salable narrative” in a time of constant and fatiguing crises.
The crisis of indigent defense lies primarily on the state level — where most indigent case are tried — in localities that are not living up to the 6th Amendment’s guarantee of effective counsel, Tribe said. But he believes the federal government has a role to play in improving the system.
“I would be the first to admit that, in some aspects, the federal government contributes to the problem,” he said. “[But] there are potentialities for improvement.”
Tribe praised federal and state authorities for using their “bully pulpit” to push for changes. Others at the panel also voiced support of such policies.
“I applaud the magnificent use of the bully pulpit that the Attorney General is using, and Professor Tribe going around the country,” said Jo-Ann Wallace, president and CEO of the National Legal Aid and Defender Association.
Tribe will be meeting with chief justices in July, when he will try to persuade them to takes ownership over the system and transform their jurisdictions into “receptive judiciar[ies],” he said.
In addition, he called for more congressional involvement, including more federal funding — a point some on the panel were dubious to endorse.
Erik Luna, law professor at Washington and Lee. (photo by Channing Turner / Main Justice)
“My stance is one of caution, particularly in respect to the federal government signing checks to the states,” said Erik Luna, law professor at Washington and Lee University. “Congress should consider what the unintended consequences are.”
Tribe responded by pointing to historic cases of government interference to promote constitutional interests, including the Civil War. However, he did acknowledge the need to proceed carefully and added that federal oversight and regulation should accompany any state grants.
“I’m in favor of conditioning these grants more than they’ve been conditioned [in the past], but that’s a lift on the Hill,” said Tribe. “I’m looking at ways in which we can get state public defenders to compete for who’s worthy of receiving these grants.”
Stephen Bright, president and senior counsel for the Southern Center for Human Rights, also remained dubious on the origin of additional funding.
“I know Alabama department of corrections today is running on stimulus money…[but] we are not going to get public defenders funded by stimulus,” he added.
Tribe said his initiative would provide a place for ideas that pursue additional funding as well as stress effective use of existing funds. Effective counsel makes economic sense in the long run, he said, by reducing overall system costs.
“People come to my office and see the sign ‘Access to Justice,’ and they want their picture taken…with it because that’s something new,” he said. “There is a place in the Justice Department where these ideas will not go into a black hole.”
