U.S. Department of Justice challenges state Chief Justices to fix access to justice systemic deficiencies
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On July 26, 2010, Laurence Tribe, Senior Counsel for the United States Department of Justice, Access to Justice Initiative, delivered an important speech to the Conference of Chief Justices, challenging them to halt the disintegration of our state justice systems before they become indistinguishable from courts of third world nations. “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.”
The active participation of Chief Justices in reform is critical, Professor Tribe noted, to counterbalance the “hydra-headed monster” of “too many people to be served effectively” in the face of state legislators’ “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” and their “unwillingness to provide the legal assistance needed to provide meaningful, adequate defense.”
The often overlooked linked between broken justice systems – both civil and criminal – and escalating risks to public safety was of particular focus in the speech. Tribe stated that “clogged” and at times “corrupt” public courts lead 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.” Tribe continued: “[T]hat in turn leads increasing numbers to flout the law.”
Tribe was particularly concerned about the plight of juveniles in our nation’s courts: “[W]ithout 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.”
The DOJ gave very specific recommendations to the state chief justices. Recognizing that the “consequences of juvenile adjudications are serious and long term” and that “the lack of representation can reshape a child’s entire life” from “expulsion from school, exclusion from the job market, eviction from public housing, and exclusion from the opportunity to enlist in the military,” DOJ challenged the state chief justices to be the protectors of the right to counsel. Lauding those states that “do not accept a waiver of counsel from juveniles under any circumstances,” DOJ recommends that “every state in the country should adopt a rule that at the very least requires consultation with an attorney prior to waiver of counsel.” Furthermore, the DOJ recommends that each Chief Justice create a state task force – a la Nevada -- to evaluate “the adequacy of the way your state is discharging its federal constitutional duty under Gideon.”
In closing, Tribe stated, “[t]here 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.”
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