Keynote Address: Indigent Defense and Access to Justice

Laurence Tribe, Senior Counselor, Access to Justice
NIJ Conference 2010
June 14-16

• Keynote Address Part I
• Keynote Address Part II

Keynote Address Part I

Laurence Tribe: Thank you so much for that very generous introduction, Kristina, and thank you for joining our Office of Justice Programs' remarkable Assistant Attorney General, Laurie Robinson, in inviting me here to speak with this very distinguished group today.

I do have to add a word of apology along with appreciation to Laurie in particular. I have to apologize for stealing, as my principal deputy in the Access to Justice initiative at the Justice Department, one of Laurie's most accomplished, knowledgeable and energetic protégés, Lynn Overmann. "Stealing" isn't exactly right because Laurie reluctantly but generously gave Lynn's move from OJP to ATJ — you have to get used to acronyms in the government — her personal blessing. Lynn has brought with her to my office much of what only Laurie Robinson is capable of teaching. So it is to Laurie that I owe a great deal of what I am confident my initiative will be able to accomplish.

[Applause.]

Tribe: As my staff can attest, I have been very much looking forward to this event. The National Institute of Justice was founded just as I was ending my days as a law clerk at the U.S. Supreme Court, and ever since, I have followed its work with deep interest and appreciation. Four decades later, it's a real honor to be here in my new capacity as senior counselor for Access to Justice to speak to your Institute, an Institute that reflects our nation's greatest traditions on a topic that calls forth our greatest ideals.

I used to be what some people call a "hard scientist," actually. I received my undergraduate degree in mathematics, and I spent a year on a National Science Foundation fellowship, completing pretty much all the coursework for a Ph.D. in mathematics at Harvard, becoming what I think they used to call an ABD, which stood for "all but dissertation."

I worked six summers at the Lawrence Radiation Lab in Berkeley doing high-energy physics and programming computers, spent a year at the National Academy of Sciences writing a report on technology assessment. The title of my first published article pretty much says it all: "The Numerical Solution of Ill-Conditioned Linear Systems."

[Laughter.]

Tribe: I was, in short, a real geek.

Although I eventually turned my attention to the law, as I guess some of you know, I could never shake that original passion, and as it turns out, it captured the imagination of someone else as well — the President of the United States, when he became my main research assistant as a first-year law student back in 1989. I've never before or since picked a first-year law student to be my main research assistant. We worked together on an article called "The Curvature of Constitutional Space" for the Harvard Law Review. The subtitle was "What Lawyers Can Learn From Modern Physics," and I can report, although this will come as no surprise, I think, to you, that even back then, Barack Obama showed enormous scientific curiosity, a voracious appetite for truth and a need to cut through complexity without oversimplifying it. We were dealing with Einstein's theory of relativity, with Heisenberg — tough stuff. Now, that impressed me, and it did bring us closer. His interests matched my own lifelong search for fact, for finding the truth of the matter, whether in mathematics or physics or, yes, even the law.

Indeed, I believe one of the greatest threats to progress is the casual, even contemptuous, attitude toward evidence and reality that some people in positions of power have at times displayed; an attitude that has bred a brazen willingness to censor and manipulate evidence for political ends.

I am deeply grateful to serve a president and an administration that has respect for evidence-based reality, and I am truly delighted to address an audience in which I know that that respect is deeply shared.

In recalling my flirtations with the hard sciences, something I don't often actually think a lot about because I am so preoccupied with other things, I am reminded of a story told by one of the pioneers of computer theory and artificial intelligence, the late Joseph Weizenbaum of MIT.

Joe described to me how he once gathered a group of Nobel laureates to ask about the nature of knowledge. They all claimed to believe only in the hard sciences, none of that soft stuff that passes for understanding. Well, unconvinced, Joe probed deeper. "How many of you," he asked, "believe that a century from now, we will all still be convinced by Einstein's famous formula, E equals MC squared?" Of the dozen or so laureates present, just three raised their hands, and then he asked them, "How many of you believe a century from now, we will all still be convinced that the road to hell is paved with good intentions?" Every hand shot up at once. "You see," he said, "you believe in soft science after all."

[Laughter.]

Tribe: I tell that story because it helps to underscore the misleading dichotomy between categories of scientific understanding. Knowledge comes in lots of flavors. Some lend themselves to straightforward quantification in hard numbers. Others are best expressed in geometric patterns or topological structures. Sometimes we need to be creative about measuring what might be called soft variables — parameters that point to phenomena that are not as easy to locate as points on a numerical graph, phenomena like how people feel they are being treated by the institutions of their government.

But what ultimately matters is not the form in which we seek to measure and document experience. What matters is that we observe the canons of scientific method in recording empirical truth as we find it, not as we wish it to be, and that's true whether we are engaged in quantum physics or sociobiology, in the operations of particle accelerators or in the functioning of our system of justice.

Since the day that President Johnson convened the historic Presidential Commission on Law Enforcement and Administration of Justice in 1967, the commission that led to the creation of the National Institute of Justice, you have been at the forefront of searching out verifiable patterns in the operations of law and justice that have eluded others. You have never feared those soft variables; you have embraced them. And it is that fusion of law, justice and the age-old scientific method in pursuit of verifiable, even if not easily verifiable, truth that has made me, as you can tell, so excited about being here.

But there's something else or maybe I should say someone else. This April, I felt really honored to be elected as the 1,001st living member of the 267-year-old American Philosophical Society, which Benjamin Franklin founded in 1743. The mission of that society is to promote useful knowledge. Those words express more than a platitude. They embody a distinctly American philosophy that evokes the spirit of its founders and, in particular, of its most scientifically famous founder, a visionary whose sense of the world, I have come to believe, best embodies the spirit of the National Institute of Justice.

Franklin learned from everyone — the Iroquois, the French, the British, everyone in between. With his discoveries, he often saw what was invisible to others, and he proceeded to reveal what he learned not for personal gain but for the benefit of his fellow human beings. Consider the immortal story that we all know, the story of a bespectacled Ben snatching lightning from the sky with nothing more than a kite, a key and a laden jar to collect the mysterious charge.

Walter Isaacson's masterful biography of Benjamin Franklin notes the conclusion of the great historian of science, I. Bernard Cohen, that Franklin's experiments with lightning revealed truths of the same fundamental importance to physical science as Newton's law of conservation of momentum, and if we turn the clock back 258 years to this very month, we can, indeed, begin to appreciate that Franklin wasn't playing with fire in June 1752 merely to satisfy his curiosity. By revealing that lightning was electrical current and that it could be tamed with a rod, Franklin, again, according to Isaacson, conquered one of nature's most terrifying dangers. Few scientific discoveries have been of such immediate service to humanity.

Before Franklin tackled the problem, lightning regularly set fire to buildings like homes and churches and struck down men, women and children every day. So he conducted his kite experiment, as he conducted all experiments, with an immediately useful application in mind: solving a deadly mystery that rendered life more precarious. One might even say less just.

Think of the metaphor that we still use to describe processes, whether of nature or of human institutions, that strike without rhyme or reason, like "being struck by lightning," we say, an image that some Supreme Court justices have used to illustrate the constitutional infirmities of systems for meting out punishment that we have failed to tame with criteria to guarantee a consistent and predictable application.

Franklin, who regularly turned down the offer of patents and other material rewards for his work of discovery, sought not credit but the immediate and material improvement of the human condition. You, too, put your trust not in owning knowledge but in sharing it in pursuit of sound evidence-based public policy.

What Franklin once wrote in a letter to a friend — "What signifies philosophy that does not apply to some use?" — could equally be said of your research here at NIJ.

Indeed, like so many of you, Franklin was fundamentally restless until he was able to fuse his passion for measurement, discovery and explanation with his conviction that there was no higher calling than public service, and after his most famous experiment, he turned almost exclusively to that calling. He founded a university that would train ordinary citizens to become extraordinary.

Keynote Address Part II

Laurence Tribe: He invented the first U.S. hospitals to pool doctors for the public health. He launched our nation's first philanthropic organizations.

It wasn't long before he developed the political philosophy of pragmatism, of finding out what worked and relying on empirical results in the name of good government. This sentiment was the midwife to the birth of our nation and its constitution, and it was, in the eyes of his observant biographer, Walter Isaacson, a turning point for public policy everywhere. "Franklin," he wrote, "applied his scientific style of reasoning — experimental, pragmatic — not only to nature but to public affairs. The scientist and the statesman would, henceforth, be interwoven, each strand reinforcing the other." The take-away lesson for me is how Franklin, as the father of our nation's enlightenment tradition, instilled in our history and culture the great American faith in knowledge harnessed to progress, a faith that has set the National Institute of Justice apart since its very founding.

Now, I am sure you are all wondering what any of this has to do with Access to Justice. The answer is everything. For one, Franklin's great-great-great-grandfather was known, believe it or not, for his pioneering legal advocacy on behalf of poor farmers who couldn't afford fair access to England's system of justice in their struggles against aristocracy, but there is something much more fundamental than that rhetorically convenient connection anecdotally linking Franklin's ancestry with our nation's commitment to the words etched into the facade of our nation's highest court — equal justice under law.

It is, in short, about calling forth that American faith in knowledge harnessed to progress, but not before we call forth the knowledge itself. All of you, I think, are familiar with what we do know about the access-to-justice problem. We know and we've known for some time that public defenders are grossly understaffed, underfunded and overworked. Caseloads are often five to six times that of the ceiling set by the National Advisory Commission on Criminal Justice, ranging from 500 to 900 felony cases and over 2,000 misdemeanors per defender per year.

Three years ago, some defenders in New Orleans averaged 19,000 cases a year, allowing an average of just seven minutes per case; think about it, a mere seven minutes to talk to a lawyer about a life-altering decision.

And we all know, as evidenced by the 254 people in the United States who have been exonerated, including 17 who served time on death row, that there are not enough good lawyers out there doing the necessary work of justice. As my judicial hero and late friend, Justice William J. Brennan, once said and as I know you all believe, "We must remember that society's interest is equally that the innocent shall not suffer, and not alone that the guilty shall not escape."

The situation isn't any better, really, in civil cases, including those that involve life-altering matters like deportation, loss of your child or eviction. Although our Supreme Court has not held that indigents in proceedings of that kind are entitled to be represented by counsel at public expense, nobody doubts that those who cannot afford counsel in proceedings touching such momentous matters are at a potentially ruinous disadvantage.

The truth is that as a nation, we face nothing short of a justice crisis. It is a crisis both acute and chronic, affecting not only the poor but the middle class. The situation we face is unconscionable. It's why the President and the Attorney General created the Access to Justice initiative that I am leading, and it's why we won't rest until we have made measurable and sustainable progress, but to make that progress and to do it across the board, we have got to first acknowledge that what we do know is far outweighed by what we don't know.

There's a vicious cycle to demonstrate the need for funding. To do the studies that we need, we've got to demonstrate the magnitude of what is needed and point to the results we expect to achieve through those studies and through implementing their conclusions, but to do that, we could sorely use the results of the very studies for which we seek needed funds. I am sure you have all experienced that vicious cycle.

Too few studies have dealt with public defender services or prosecutors. In fact, nearly the whole court system is lacking in research. We are aware of this, you're aware of it, and so, too, are President Obama and Attorney General Holder and Assistant Attorney General Robinson.

In fact, I am proud to announce for the first time today that we will be working in close collaboration with NIJ to issue a new grant solicitation in fiscal year 2011 for Access to Justice-related research. But what kind of research exactly do we need, or more to the point, what kind of research will help those who need us? It is our strong belief that only holistic multidisciplinary efforts are likely to be effective at closing the justice gap in this country, an approach that we call "person-centered" rather than problem-centered, but the word "only" in that sentence is misleading because there are so many possibilities.

We can, for example, better match distinct areas of behavioral science, the cascade theory, of nudge theory, of tipping point theory — which, by the way, Franklin mastered two and a half centuries before Malcolm Gladwell — with nearly every open question facing the criminal justice system. You pioneered the long-term connection between drug use and crime, filling an empirical vacuum that led to innovative holistic programs and better laws. You performed long-term research on crime prevention in Hartford in the 1970s and filled another empirical vacuum that led to the modern-day community policing model.

Although not many of the studies you have supported over the years have focused on prosecutors, indigent defense or other aspects of the court system, the methods that you've employed are fully applicable to these new realms of research.

So I am asking you to take the same rigor, the same curiosity, the same energy and expand your research to look at the comparative costs and benefits of some of the innovative diversion programs that the Office of Justice Programs supports. At the efficacy and savings engendered by prevention efforts, both in juvenile and adult systems, or other paradigms that go beyond the classic cops and corrections model of arrest; conviction; and long-term, often wasteful and often counterproductive incarceration.

As many of you know, reforming indigent defense is a top priority for Attorney General Eric Holder and for the Assistant Attorney General, Laurie Robinson, and for the mission of my Access to Justice initiative. Currently, public defenders are hamstrung by a lack of research that shows not only that good defenders are necessary to guard against injustice but also to examine what we strongly suspect is true, that good defenders appointed early in the case can create significant savings in the criminal justice system, often resulting in a net negative cost rather than a net positive cost.

Empirical study either verifying or falsifying that hypothesis would constitute research in pursuit of the highest goals that we all share, research that could potentially transform an entire field and, in the end, help narrow the gap between our aspirations to justice and the justice we actually deliver to our citizens; narrow the gap between rhetoric and reality.

There are truly endless opportunities, and I would urge you to get in touch with me and with my office with your ideas. My team and I would love to discuss them with you and to pursue those that seem most promising. If you are in need of some inspiration, I would urge you to ask your colleagues about NIJ's recently funded study of the Hawaii HOPE program, an innovative probation and parole initiative that calls for the delivery of swift and certain punishment when a probationer violates the conditions of probation.

That research has shown that the swift response does more than unclog the system; it improves the perception that the sanction is fair. And the immediacy of the punishment turns out to be a vital tool in shaping behavior. After a year in operation, program participants were — now, get this — found to be 55 percent less likely to be arrested for a new crime and 72 percent less likely to use drugs. That's an incredible finding, and it is exactly the kind of knowledge we need and need now.

The fact is that for 40 years, NIJ has been ahead of the curve on nearly every emerging critical issue concerning our system of justice, and, particularly with the new grant solicitation with which we will be involved, I am hopeful that Access to Justice will be no exception, that you will build on what you have done best to further what we now need most.

After all, although it may sound like a cliche, a great deal comes down to being smart about criminal and civil justice rather than just being tough to prove a point. We need all of your help to think more creatively and holistically about the criminal justice system and about the larger legal system, criminal and civil, in which it's embedded. We need your help to change the way we think so that we can move forward in resolving the urgent, persistent problems of access that have so long plagued our people.

I am reminded, in closing, of Justice Holmes' immortal dissent in Abrams v. United States. "Truth," he wrote, "is the only ground upon which man's wishes safely can be carried out. That, at any rate, is the theory of our constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge."

It's in that spirit that I ask each of you today, because this can't wait another day, to pursue understanding through systematic study and experimentation, to do it with ever greater zeal in the search for justice. Only by seeking more perfect knowledge can we build a more perfect union.

Thank you very much.

[Applause.]