Annual Meeting of the Conference of Chief Justices and Conference of State Court Administrators, July 26, 2010, Vail, Colorado
Laurence H. Tribe
Senior Counselor for Access to Justice, U.S. Department of Justice
One of the things John Kennedy used to say was that "everyone can make a difference–and everyone should try." For this distinguished audience, particularly the chief justices of our state courts, that’s an understatement. For you know better than anyone–and so many of you have written cogently on this very subject–that our justice system needs fixing. It is a system in crisis. My purpose today is not to regale you with Doomsday stories–although I may end up telling you one or two. My purpose is to challenge you to take up the task of improving our system, committing yourselves to fixing it. No one is better positioned than you to improve it. You are, quite literally, "Justice" – it is both your honorable title and your most solemn obligation–ensuring that justice is truly done in your systems. Like the Prophet Isaiah, you have touched the burning coal, you have the vision, you have the knowledge, and perhaps most importantly, your voices command the respect which will drive true reform. Ask yourselves, if not you, who?
After spending four decades teaching and writing about our nation’s remarkable Constitution and the legal system built on its foundation, I welcome the opportunity finally to work in a venue where so much that I have written and studied can find a practical outlet in the transformation of everyday life for ordinary people. Though I don’t have anything close to the tool kit or the skills each of you has, I feel an obligation to do what I can to "fix" things. And I am thoroughly convinced that our system of justice can be made better–fairer, more humane, more efficient, more just. My goal–and that of the administration–is to partner with you in this most worthy of endeavors.
My long life in the relatively quiet groves of academe, in the tree-lined streets of Cambridge, Massachusetts, was a calm one compared to life inside the Beltway. The perspective from that privileged perch was shattered when I began to see the broader view from inside the Justice Department, a view that reaches into every nook and cranny of our country. In my new job as Senior Counselor for Access to Justice, I have come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment.
Though only five months into the job, I still view with awe the sign over the door to my office that reads, "Access to Justice." More than a few folks who have come to visit have paused to have their pictures taken–not with me, mind you, but with that sign. But even after these few months, my staff and I already sense the danger of unrealistic expectations. We worry, as do many expert observers, that the system is too badly broken in too many ways to be susceptible to any "quick fix," our state and federal budgets too strained to provide the resources so desperately needed, injustice too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent. Or is it?
Ours is supposed to be a system that levels the playing field by meting out justice without regard to wealth or class or race, a system that lives up to the promise emblazoned in marble on our Supreme Court, "EQUAL JUSTICE UNDER LAW." But as you know all too well, far too many of our citizens find instead a system in which the deck is stacked in favor of those who already have the most: in favor of the wealthy and against those already disadvantaged or victimized by the more powerful. There’s no reason to mince words: Not only the poor but members of the shrinking middle class find a system that is confusing, difficult to navigate, challenging to the point of inaccessibility for anybody who can’t afford the best lawyers, and ridiculously expensive for those in a position to pay the going rate.
Consider the Burger family in Michigan, a state that permits non-judicial foreclosure. The Burgers bought a four-bedroom bungalow in 1997 for just under $39,000. In January 2009, they inadvertently sent a money order that was 7 cents short of what they owed, and they were late making February’s payment as well. They caught up by April, which was amazing considering that they lost their 10-month-old daughter in a household accident that same month. According to the family, the bank sought to foreclose anyway, giving them a choice: Pay $8,390 to reinstate the mortgage or lose their home. The Burgers didn’t have the money, couldn’t afford a lawyer, and given Michigan’s laws weren’t afforded any court intervention or oversight, so they lost the only house that their four living children, all 12 years old and younger, had ever known.
But the unredeemed imbalance of power and wealth are not the only viruses infecting our legal system. Equally detrimental, though less visible, is the hydra-headed monster of too many people to be served effectively and–for lack of a better word to describe it–the punitive urge, an appetite for imprisonment that ignores the veritable mountain of evidence which shows that alternatives to incarceration are often more effective at reducing recidivism while also less costly. All too often, the systems that rely on lengthy incarceration as the only available criminal sanction suffer from crushing caseloads and an inability or, I hate to say, unwillingness to provide the legal assistance needed to provide meaningful, adequate defense. Though neither of these forces necessarily originates from any ill intent, their combination creates waste, havoc, and confusion and leaves the system weakened and the participants on both sides of the bench disillusioned and discouraged.
Nobody who works within the legal system enjoys confronting these problems–they cast a dark shadow over a system in which we deeply believe and to which we have devoted our careers. But confront them we must if we are to combat them and redress their pernicious effects.
I know all too well that my fellow academics just LOVE to study the federal judicial system and its doctrinal and jurisdictional intricacies. I don’t exempt myself from that description. But the amount of energy devoted to the study of federal courts masks a fundamental truth: It is YOU who are the center of American law and American justice–justice or the lack of it.
More than 95 percent of all cases in this country are filed in state courts. Just to put things into perspective, it helps to recall that slightly under 280,000 civil cases of all kinds were commenced in federal district courts in 2007–compared to nearly 18 million civil cases in the courts of our 50 states. The federal system saw over 66,000 new criminal cases filed in 2007, a substantial number to be sure, but nowhere near the 21 million plus that originated in your state courts.
In the face of this staggering burden, the problems facing our state judicial systems can only be described as deplorable. The court systems in 28 states had hiring freezes in FY 2010, 13 states froze court staff salaries, six states mandated court furloughs, six states closed courtrooms–one day each month for all California courts. Los Angeles County alone has lost over $130 million of its court budget, and hundreds and even thousands of court employees are being laid off from California to Florida to New Hampshire. And judicial pay, adjusted for inflation, has fallen nearly 24 percent over the past 40 years while the average U.S. worker’s wages have risen nearly 18 percent.
Because of bulging criminal dockets and huge pro se backlogs, all made worse by the faltering economy, it’s becoming increasingly difficult for business litigants and others who are embroiled in civil disputes ranging from consumer fraud to family matters to get courtrooms for trial or to have trials, especially jury trials, scheduled in a timely way–often, they wait years to get their day in court. It was Clause 40 of Magna Charta that proclaimed, "To no one will we sell, to no one will we refuse or delay, right or justice." Justice that must depend on the purse, or justice so long delayed that it is in essence denied, does not deserve the name.
For the privileged litigants who can afford it, the natural response to a denial of justice in the public courtrooms of our nation is to take their business to private judges and mediators, operating outside the watchful gaze of the public and beyond the effective reach of the rule of law. The harm that results from that private response is experienced as well in the public sphere, where adjudication conducted out of the public’s sight mystifies instead of educating, depriving democracy of one of its essential wellsprings, that of seeing justice done.
For those litigants who cannot afford that private alternative, the natural response to a denial of public justice is more troublesome still. They must either suffer in alienated silence or take the law into their own hands. Judy Norman, the North Carolina woman whose story and trial are studied by many first-year students in their criminal law courses, tragically exemplifies that response. For 25 years, Ms. Norman was psychologically and physically abused, beaten by her husband, and forced into prostitution. The state rebuffed her attempts to seek counseling and welfare benefits, and the police refused to take action unless she filed a formal complaint, which she was too afraid to do. Because she thought her husband was "invulnerable to the law," she finally shot and killed him in his sleep.
The human-rights activist Gary Haugen, founder and director of International Justice Mission, has documented the way in which wealthy and powerful elites in third-world countries with dysfunctional public justice systems often circumvent those systems with workarounds that submit their controversies to private dispute resolution, leaving the poor, who of course can afford no such recourse, to depend on the clogged and at times corrupt public courts. That leads to a vicious cycle of cynicism and disaffection in which the system’s democratic legitimacy, the very foundation of its capacity to articulate and enforce the rule of law, disintegrates. And that in turn leads increasing numbers to flout the law, to resort to self-help, or to give up altogether, eroding the traditional claim of the judicial branch to a share of public resources sufficient to perform its mission with competence and integrity. In the meantime, the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial stem afloat.
I hasten to add that this picture of what sometimes happens abroad stands in stark contrast to the judicial systems over which you preside. All of you–all of us–have ample reason to be proud of the integrity and efficacy of American courts, both state and federal. But to say that is not to condone indifference to the early warnings of disintegration to which some of you have called sober attention. It would be foolhardy not to heed those warnings, shortsighted to celebrate our successes without acknowledging–and committing to combat–our failures. I would simply ask: Who among us is willing simply to wait while the public justice gap in America threatens to grow until the contrast between our system of justice and that in many other nations becomes ever harder to discern?
The magnitude of the problem tempts one to reach for sweeping solutions in some unifying vision of "access to justice" writ large, but the diverse and multifaceted character of the problem resists reduction to any grand and fully coherent theme conveniently captured in a simple slogan. Once one recognizes the perils of rigidly idealistic thinking–something that has from time to time plagued everyone in our "access to justice" office–one comes to a recognition that what is perhaps needed more than an inspiring but abstract and utopian call for a thousand-fold increase in funding is a series of tangible, achievable reforms that will make state courts better at what they do and more engaged in making law and legal remedies accessible to all. And central to any such reinvigoration of the state judiciary is the assumption of a leadership role by those at the pinnacle of the state judicial systems: YOU. As I said at the outset, if not you, who?
I will propose three sets of tangible, achievable reforms this afternoon; but before I do, let me address an overriding concern that many express with the very idea of active judicial leadership. It is that judges should be neutrals, not participants. They should be objective. They need to remain above the fray. People don’t agree on a definition of "judicial activism" but, in a riff on Potter Stewart’s definition of hard core pornography, they "know it when they see it." And, if they affix that label to it, they know they don’t like it. But whatever one’s notion of impermissible approaches to judging, there is a basic and often ignored difference between judicial neutrality and judicial inactivity, between judicial objectivity and judicial passivity. Perhaps the greatest image we can conjure of a wise judge is that of Solomon. We all remember his creative pre-DNA-test solution to the problem of adjudicating the contested issue of maternity between two women making competing parental claims to the same infant. The wise king’s proposed solution, which he sprang on the women when he suggested splitting the baby in two while he watched the reactions of both claimants to motherhood, was the very essence of neutrality and objectivity. But it was hardly passive! It was as active as all get-out. Solomon’s wisdom sprang from making justice an active verb.
If some of the things I’ll be asking of you, in your capacity as chief justices and as occupants of the bully pulpits in your respective states, will resemble judicial "activism," they will bear no resemblance to activism of an ideological stripe, right or left, but will bear the "activist" label only to the degree that activism is understood as the opposite of passivity–a passivity that disclaims responsibility for the systems of which you are, after all, the stewards.
One inspiring example of the "good" judicial activism I’ve just described is taking place in Philadelphia, where a trial judge named Annette Rizzo launched an innovative mortgage mediation project. Judge Rizzo was initially asked by a particularly progressive sheriff to issue an area-wide moratorium on foreclosure sales, which were ravaging Philadelphia neighborhoods. Judge Rizzo, taking a leaf out of John Marshall’s book, declined to issue that specific relief–which would undoubtedly have garnered her the "bad" judicial activist label–and instead took the opportunity literally to restructure the foreclosure system in Philadelphia. She issued an order that no foreclosure sale could win judicial approval before the lender had at least entered into good-faith mediation with the homeowner, aided by a state-funded housing counselor. The mayor’s office got on board, the relevant stakeholders (including the lenders) offered input, and the program was off and running. My staff and I paid a visit to Judge Rizzo’s courtroom and witnessed the program, which has successfully kept hundreds of families in their homes and permitted many others to achieve more dignified and graceful exits than would otherwise have been possible. And, in case you’re dubious that Judge Rizzo’s efforts could take hold in your backyard, you should know that jurisdictions from Orange County, California to Boston to Louisville, in judicial- and non-judicial-foreclosure states alike, are implementing similar programs.
Important reform efforts have also been initiated by state supreme court justices, as with the significant indigent defense reform effort spurred by the Nevada Supreme Court, which issued an order in 2008 calling for a completely state-funded Public Defender system and a permanent statewide commission on indigent defense. Although the Nevada reform effort is ongoing and there is still much work to be done, that state’s high court heroically chose to address systemic deficiencies in its system for fulfilling the obligation imposed by the Sixth Amendment under Gideon–and the promise of equal justice made by Gideon–without being asked to do so in a specific case. Of course, once asked to address the question of systemic deprivation of the protections that Gideon affords, it takes just as heroic a court to answer the call, as the New York Court of Appeals recently did under the visionary leadership of its Chief, Jonathan Lippman, in permitting the plaintiffs’ lawsuit to go forward in Hurrell-Harring v. State of New York.
I would urge every state’s highest court, led by every state’s chief justice, to establish an exploratory committee or task force with the goal of surveying the performance and evaluating the adequacy of the way your state is discharging its federal constitutional duty under Gideon. Judicial leadership of the sort shown in Nevada and New York and elsewhere is necessary if Gideon’s promise is to become more than what Robert Jackson once called a "promise to the ear to be broken to the hope, like a munificent bequest in a pauper’s will."
Now, without further ado, let me turn to the first of the three particular areas of reform that I intend to discuss with you today: juvenile justice.
I want all of you here to ensure that what happened in Luzerne County, Pennsylvania between 2003 and 2008 never happens again. As I imagine you all know, thousands of kids waived counsel and accepted pleas–in a system designed so that judges could receive kickbacks for placing children in a residential facility. The complaint alleged that none of the youth without counsel who appeared before a judge and pleaded guilty even had a colloquy about the waiver of counsel or about pleading guilty. They went to a hearing and in a matter of moments disappeared in shackles and handcuffs, for crimes as minor as stealing a four-ounce jar of nutmeg. Now of course the Pennsylvania Supreme Court vacated some 6,500 adjudications and consent decrees, expunged the convictions, and dismissed all cases with prejudice. But the damage to those kids cannot be undone. You can make sure that in America, young people enjoy the fundamental right to counsel that they are guaranteed under In re Gault. The primary goal of the juveniles and their attorneys in Luzerne County was relief in their individual cases, but those of you in this room can decide to use the lessons from that case to institute systemic change, just as Annette Rizzo took it upon herself to do in Philadelphia.
When we were juveniles, there was an ethos that everyone was out to help the kids, so issues like waiver of counsel weren’t really important. Today, confronted with situations like Luzerne County, we know better. The consequences of juvenile adjudications are serious and long term; the lack of representation can reshape a child’s entire life. Being found guilty can mean expulsion from school, exclusion from the job market, eviction from public housing, and exclusion from the opportunity to enlist in the military. It can affect immigration status. This is serious stuff.
And because it is so very serious, it’s critical that you as our state chief justices play a major leadership role. You can begin by protecting the right to counsel. The best way to do that is to prohibit the judicial acceptance of counsel waivers in your state by juveniles who have not at least received the advice of an attorney about their options and about the consequences of waiving such an important right. Many of your state supreme courts have adopted such a rule, including several in the past few years. A few of your states do not accept a waiver of counsel from juveniles under any circumstances. Every jurisdiction in the country should adopt a rule that at the very least requires consultation with an attorney prior to waiver of counsel.
We know from careful national studies that juveniles who lack counsel are much more likely to plead guilty without offering any defense or mitigating evidence. And without any credible defense, those young people are far more likely to end up in detention or incarceration, where they’re much more likely to be exposed to assault or sexual abuse, much more vulnerable to suicide, and far more likely to commit further crimes after their release. You, as our chief justices, can make a difference. Every child in delinquency proceedings should have access to justice via a right to counsel at every important step of the way: before a judicial determination regarding detention, and during probation interviews, pre-trial motions and hearings, adjudications and dispositions, determination of placement, and appeals. The changes you can bring about will affect these young people for the rest of their lives. And you could save not only their lives but the lives of those they might otherwise endanger years into the future.
Beyond waiver, it is time for the states to focus on the entire juvenile system, which has changed so much and yet receives so little systematic attention. You could establish a Blue Ribbon Commission on juvenile cases in your state, to find out the facts on waiver of counsel, on youth charged in adult court either directly or after transfer from juvenile proceedings, on plea and caseload rates, the qualifications of youth counsel, the collateral consequences for youth of delinquency adjudications and adult criminal convictions, and fees. I mention fees because they’re important. Juveniles and their families–often poor families–often have to pay for detention, restitution, and victim funds. The National Juvenile Defender Center told our office about a 19-year-old college student who was brought into court in handcuffs because she had not paid fees that had been assessed against her when she was a child. She was held until she agreed to a payment plan.
You can follow the lead of such states as Florida, Massachusetts, New York, and Washington, which have eliminated the indiscriminate shackling of youth in delinquency proceedings.
Your leadership can change the prospects for kids, especially disadvantaged kids. Now is the time.
A second area in which you are in a unique position to make an immediate and significant difference involves the removal of artificial and often enormously counterproductive obstacles to pro bono representation for limited purposes (so-called unbundled representation), pro bono lawyering by attorneys licensed in jurisdictions other than your own, and more meaningful self-representation.
No substantial improvement in the delivery of needed civil legal services is likely unless we can find a way to stimulate more–and better designed and supervised–pro bono activity. It is difficult enough to find capable, well-trained lawyers who are willing to dedicate the time to significant pro bono work, so we simply cannot afford to cling to antiquated rules that, in a misguided application of ethical norms, artificially inhibit willing attorneys’ ability to actually perform pro bono services ably and with integrity.
In particular, there are several rules that each state chief justice should be able to support:
Number One: I believe that all states should permit discrete task representation. Roughly 40 states have adopted the ABA’s Model Rule 1.2(c), or something similar, which permits pro bono attorneys to enter into representation agreements of expressly limited scope. These rules allow such attorneys to perform what are often short and simple tasks without taking on the duties and limitations that attend more classic full-scale attorney-client relationships. And because rules like 1.2(c) permit discrete task representation only where reasonable under the circumstances and after informed consent by the client, there is little or no downside.
Number Two: I believe you should all push for adoption of a rule–if one does not already exist in your state–sensibly relaxing conflict rules for pro bono attorneys. Historically, too many well-intentioned and ethically alert attorneys were prevented from rendering needed services—even when those services were as simple as filling out a request for mediation regarding a client’s pending foreclosure—just because their firms had represented some financial or other institution on a vaguely related matter that had an attenuated theoretical interest in the issue at hand. Courts should not require pro bono attorneys who are providing short-term services with no expectation of continuing representation to screen systematically for such conflicts. Indeed, some states have gone even further–Washington, for example, permits pro bono attorneys to engage in short-term pro bono representation, subject to certain reasonable safeguards, even when they know of a lurking conflict.
Beyond that, I would urge all of you who have not already done so to follow the example of Washington, D.C. and relax rules restricting pro bono representation by lawyers licensed elsewhere and not barred in your specific jurisdictions. D.C. Court of Appeal Rule 49 permits government lawyers to provide pro bono services regardless of where they’re licensed. That’s a common-sense rule that substantially increases the availability of high-quality pro bono help to those badly in need. In fact, Rule 49 permitted me to provide free legal help at a Saturday clinic shortly after I started work at the Justice Department.
Number Three: I urge all of you to examine your states’ rules of practice as they impact pro se litigants. I appreciate the difficulties that folks who can’t afford lawyers pose to your states’ dockets and courtrooms, but as we embrace technology and form simplification we’ll be in dire need of clear rules that govern how court staff and non-lawyers may guide prospective litigants through the process of filling out self-help forms. I realize that unauthorized practice of law rules aren’t a popular topic of conversation around courthouse water coolers, but we must not inhibit the ability of pro se litigants to seek ministerial help in addressing issues as critical as child custody and housing simply because our UPL rules have not caught up with our reality.
In addition to the juvenile-justice and pro bono reforms that I’ve discussed with you today, a third initiative that I would urge each of you to embrace is the creation–and, for those 24 states (and the District of Columbia) that have already created it, the care and feeding–of an Access to Justice Commission, whether by that or some other name, that embodies a sustainable institutional commitment to grading the state’s legal system in terms of how well or poorly it is delivering justice to the state’s people. Such commissions, typically created by supreme court rule or order, are deliberately designed to include judges, bar members, civil legal aid providers, representatives of law schools and, in some instances, members of the state’s executive and legislative branches.
And they have achieved some remarkable results.
In California, the Access to Justice Commission secured an annual $10 million appropriation from the state legislature for civil legal services, and deserves much of the credit for the state legislature’s enactment of the groundbreaking Sargent Shriver Civil Counsel Act, which establishes civil Gideon pilot projects that will begin next year.
In Washington State, the access-to-justice commission helped establish the Office of Civil Legal Aid in 2006 as an independent agency within the judicial branch, and in addition to increasing civil legal aid from $6.6 million in 2005 to over $11 million just two years later, it played a key role in implementing rule changes to facilitate unbundled legal services and increase cy pres funding for legal aid.
The Texas Access to Justice Commission has approached funding issues creatively and, in addition to securing $2.5 million from the Attorney General’s budget for legal services for victims of crime in 2001, has helped funnel to legal aid offices fees collected from Texas bar members and from out-of-state lawyers appearing pro hac vice.
The establishment of statewide Access to Justice Commissions has been called one of the most important justice-related developments in the past decade, and my office fully agrees. And it is your leadership that makes these commissions so successful.
The unifying theme of the three categories of action I am urging upon all of you is not to be found in any ethereal abstraction. It is, quite simply, that these steps would manifestly improve access to justice in your states; they are demonstrably achievable; and they undoubtedly demand the leadership that you as state chief justices are uniquely situated, qualified, and authorized to provide. Your responsibility to do what you can in these three realms entails more than a rhetorically lofty commitment to the ideals of accessible justice: It entails a willingness to exert genuine leadership on some tangible, nitty-gritty reforms that can have a significant, even if not a transformative, impact.
There may well be times when, as you contemplate the enormity of this challenge, the task ahead will seem so daunting that paralysis is the first reaction. Believe me–I’ve felt that, too. But, if the search for a universal solvent for the intractable problems of justice can be paralyzing, the commitment to these achievable reforms can be empowering.
So please don’t take the view that the three categories of changes I’ve outlined today are so incremental, the success I’m aiming toward so far removed in time, that there’s no point in rushing to get started. To the contrary, I’d suggest, the longer it takes to get there, the more crucial it is to begin without delay. As New Orleans Mayor Mitch Landrieu said in his first State of City address earlier this month, "There’s an old saying that the best time to plant an oak tree was 30 years ago. The second best time is now." Just know that, as you take up this challenge, my initiative, the Justice Department, the Attorney General, and the President will be cheering you on and doing all we can to be supportive of your efforts, learning from and disseminating your successes through whatever clearinghouse or network makes the most sense for that purpose and, yes, learning from and taking caution from your mistakes because, sad to say, we all do make some big ones.
I end with this thought: The trajectory of the moral universe will indeed bend toward justice, as Martin Luther King famously dreamed, only if we act to make the dream real. Unable to realize that goal in a single leap, we must not despair of realizing it step by step. The benefits of each step may seem small–but, as Richard Feynman once described the trajectory of the photon, each little arrow bent to a particular degree becomes in the aggregate a ray at the speed of light, lighting everything in its path. That ray can light our nation and the world if we all do our part. And, as I asked at the outset, "If not you, who?"
Information on how states are implementing, or may implement, Mr. Tribe’s recommendations regarding access to justice may be found here.