“Although the right to effective counsel is well established, all evidence suggests that state and local governments have fallen well short of their obligation to provide legal representation to indigent defendants, and that the federal government has failed to adequately fulfill its responsibilities to protect the Sixth Amendment rights of indigents.” Thus began a letter from U.S. Congressmen John Conyers (Michigan), Robert C. “Bobby” Scott (Virginia) and Jerrold Nadler (New York) requesting that the U.S. Government Accounting Office (GAO) “examine the current state of indigent defense within the states, and identify direct federal funding or other support the federal government provides states to assist them in meeting their constitutional obligations to provide counsel.”
On May 9, 2012, the GAO released its report showing that only a very small amount of federal dollars dedicated to state criminal justice systems ever makes its way to address the systemic deficiencies that United States Attorney General Eric Holder has termed an indigent defense “crisis” (most recently on February 4, 2012 during a speech before the American Bar Association, National Summit on Indigent Defense). Between 2005 and 2010, the U.S. Department of Justice (DOJ) dedicated nearly $6 billion under 13 different grant programs that potentially could be used for indigent defense services. Of that 5-year total – under even the most forgiving reading of the numbers – only 2.45% was actually spent on right to counsel services (or, a little less than $30 million per year). According to the GAO, the primary reason for this spending imbalance between indigent defense providers and other components of the criminal justice systems is because DOJ needs to increase “grantees’ awareness that funding can be allocated for indigent defense.” We respectfully disagree with that conclusion.
Understanding the numbers
Table I (below) is a list of the 13 DOJ grant programs that GAO identified that could potentially be used to impact the indigent defense crisis. Four of the grant programs require that all or part of the funding be dedicated to indigent defense (John R. Justice, Capital Case Litigation Initiative, Wrongful Conviction Review, and Juvenile Indigent Defense Clearinghouse).
Table I: DOJ-Administered Grant Programs
(total appropriated funding)
click on the table above to view a larger version
And, even though $25 million was appropriated over the five-year period of review (2005-2010) to these four grant programs, only 54% (or $13.5 million) actually was used to improve the public defense function, as shown in Table II (below).*
Table II: DOJ-Administered Grant Programs
(estimated indigent defense funding and percentage)
click on the table above to view a larger version
A similar story occurred with the remaining grants where indigent defense was not an identified priority at all (Juvenile Justice & Delinquency Prevention, Tribal Court Assistance Program, Justice & Mental Health Collaboration, and, Adult Drug Court Discretionary Grant). Of the nearly $728 million dollars appropriated, only a little more than $16 million dollars were dedicated to Sixth Amendment issues (or, again, 2.24%).
Why the identified federal grant programs did not impact jurisdictions in crisis
The American Heritage Dictionary defines a “system” as an “organized and coordinated method.” We, therefore, do ourselves a disservice when we use the term “indigent defense system” in describing every manner in which the right to counsel is delivered in all regions of our country. We’ll explain.
- The “public defender” model in which all attorneys and support staff are government employees and work out of a single agency;
- The “contract defender” method, in which a city, county, or state retains the services of a single attorney, group of attorneys, or private law firm (for-profit or non-profit) to provide indigent defense services in the jurisdiction in return for a set rate or fee; and,
- The “assigned counsel” model, in which a number of individual private attorneys are appointed to represent indigent defendants on a case-by-case basis and generally are paid an hourly fee for their services.
Even though there is a great disparity when measuring the effectiveness of public defender offices throughout our nation (e.g., some offices abide by stringent workload standards while others operate under excessive caseloads) all public defender models are rightfully classified as “systems” since attorney and non-attorney staff will generally work collaboratively while operating under a single administration, and often out of a single office. However, both the contract defender and the assigned counsel models can be divided into two broad sub-categorizations: coordinated and non-coordinated.
Coordinated assigned counsel and contract models are characterized as having independent administrators who are not unduly influenced by politics or the judiciary, monitor and enforce performance standards, keep workload manageable, and provide training, among other systemic safeguards. Generally speaking, a delivery model is “coordinated” when it meets the minimum threshold for systemic adequacy as defined by the American Bar Association, Ten Principles of a Public Defense Delivery System. Coordinated assigned counsel systems can operate at either a state or local level. The Massachusetts Committee for Public Counsel Services or the San Mateo County (California) Bar Association’s Private Defender Program are good examples of the coordinated assigned counsel model. Similarly, coordinated contract systems can also operate statewide or locally, as evidenced by Oregon’s Office of Public Defense Services, or by King County (Seattle) where four independent non-profit public defender offices operate under contract.
However, the right to counsel in America exists on a broad continuum (see graphic to the right). Those public defender organizations and coordinated assigned counsel and contract systems that meet ABA Ten Principles (or, have evolved beyond them to develop innovative best-practices focusing on such things as a client’s broader life issues and other legal needs) make up a very small portion of the spectrum. They are the exceptions, not the rule. The most prevalent forms of indigent defense services in the United States are the non-coordinated contract and assigned counsel models. Here, private attorneys generally handle an unlimited number of cases for a single flat fee under contract to a judge or county administration. These non-coordinated delivery models are rife with financial incentives for lawyers to do as little work on cases as possible and rarely have supervision structures to assess performance quality. There is no “organization” and lawyers rarely collaborate with other indigent defense providers even within the same county, let alone with the rest of the state. They are more appropriately called “non-systems.” (See sidebar on “Systems” vs. “Non-Systems” at the beginning of this section above.)
This discussion of systems and non-systems is critical to understanding the GAO report. “Non-systems” have no impetus for improving services, let alone a structure for seeking federal grant opportunities should they even want to apply. Sure, a county manager or criminal court judge may apply for federal grants even if there is no formal indigent defense “system”, but generally if a county uses flat fee contracts for defender services it is prioritizing short-term cost control over adequacy of services. In our experience, most are not aware of prevailing criminal justice standards that ban such flat fee contracts and could be used as the building blocks to reforming a “non-system.” Once a county puts aside such “quality” concerns, it has already achieved its main goal of finding the cheapest manner of providing some modicum of representation (albeit “ineffective”) to the greatest number of clients.
The greatest awareness campaign regarding DOJ funding, as suggested in the GAO report, will never impact the 64% of the country with “non-systems”, even under the best of circumstances.
The GAO conclusions are based on unrepresentative surveys
As detailed in the GAO report, public defender offices “most frequently reported (67 of 103) that their lack of awareness about their eligibility for funding was an extremely or very important reason they did not apply for DOJ discretionary grant funding from fiscal year 2005 through 2011.” However, GAO reports that their conclusions are based on a survey of 253 public defender offices or agencies of which only 118 offices responded (or, 47%). As GAO reports, “[r]espondents to this survey were generally a county or city public defender office, state-run public defender office, or firm or nonprofit organization under contract to provide indigent defense services.” In other words, respondents were predominantly from “systems” not “non-systems.”
Approximately 64% of the country’s indigent defense systems were not in the survey. Roughly, only 11% of the organized “systems” responded to the GAO survey. Interestingly, even GAO states that “[d]ue to the relatively low response rate and the possibility of other errors all questionnaire surveys face, our results represent only respondents who participated in our survey and should not be generalized to the population of public defender offices or agencies.” Yet, that appears to be exactly what they did by titling the report “INDIGENT DEFENSE: DOJ Could Increase Awareness of Eligible Funding and Better Determine the Extent to Which Funds Help Support This Purpose.”
Why the grants specified for use on indigent defense did not address “non-systems” deficiencies
Certain federal programs will impact a slice or whole section of the indigent defense continuum while ignoring others. For example, the John R. Justice student loan repayment program is critical to retain lawyers in organized systems, but the money does not make a non-system more independent, or help a jurisdiction move to continuous representation by the same attorney throughout the life of a case or provide oversight and supervision to lawyers where currently there is none.
Similarly, there was a heavy focus on training of attorneys with the federal dollars from 2005-2010. Without a doubt, training does improve the quality of lawyering of those that have the ability or wherewithal to attend, but it does not create sustainable training apparatus or decrease caseloads or allow attorneys to be appointed earlier in the life of a case – all structural improvements required under the ABA Ten Principles. The Capital Case Litigation Initiative program was one such program that focused exclusively on death penalty training.
Then there are those programs that seek to rectify individual cases, like the Wrongful Conviction Review program. Sure, defender offices could apply this program to increase staff, but most likely the grant recipients devoted resources to specific cases of wrongly convicted individuals rather than broader systemic reform. Even when money could be used to increase staff, applicants were advised to be public defender offices with “in-house post-conviction programs with demonstrable experience and competence in litigating post-conviction claims of innocence,” that “devote at least one full-time employee to the screening and/or representation of post-conviction claims of innocence.” Such guidelines make it impossible for a “non-system” to apply even if they had the desire to do so.
These three federal grant programs – John R. Justice, Capital Case Litigation Initiative, and Wrongful Conviction Review – accounted for more than 96% of all the federal money going to indigent defense under the programs dedicated specifically for the right to counsel (or, $13 million of the $13.5 million awarded; the fourth award – the National Juvenile Indigent Defense Clearinghouse – was dedicated to systemic reform). This is not to say in any way, shape or form that student loan forgiveness or training or post-conviction claims of innocence should be defunded in favor of programs aimed at improving non-systems. Rather it serves to underscore that new approaches are needed in addition to these if the federal government is serious about ensuring a meaningful right to counsel in America.
Why federal dollars did not have much impact even on indigent defense “systems” struggling to meet standards
As the GAO report makes clear, the only jurisdictions that were eligible to receive federal dollars over the five-year period to improve indigent defense services were those that had some sort of “structure.” This limits DOJ eligibility to, roughly, the 36% of jurisdictions nation-wide with public defender offices or coordinated assigned counsel/contract programs. But even these “systems” have huge hurdles to climb in order to seek and secure federal dollars.
There are two types of federal grants: competitive grants and formulaic grants. Competitive grants require indigent defense providers to have the structure, time and resources to dedicate to applying for federal grants and, as we have seen, generally went to “systems” rather than “non-systems.” Formulaic grants give funding to states that in turn divvy up the money on the local level. The Justice Assistance Grants (JAG) program offers the most dollars of any DOJ grant program (approximately $2.8 billion over the five-year period). As noted in the GAO report, 60 percent of JAG funding is awarded directly to a State Administering Agency (SAA) – “the designated agencies in each state that establish funding priorities and coordinate JAG funds among state and local justice initiative.” According to the GAO, only 4 percent of JAG grantees “reported that representatives of the indigent defense community were involved in the decision making process.” It is therefore not surprising that “JAG respondents most frequently reported that funding for law enforcement, such as overtime for police officers; equipment, such as surveillance equipment or street lighting; and technology, such as cameras for police vehicles, were higher priorities than indigent defense.” Moreover, given that JAG funding historically has been viewed as a law enforcement grant, decreases in JAG funding (like when the 2008 JAG appropriation dropped from $525.2 million the previous year to $170.4 million) “make it even less likely that jurisdictions … will allocate funding for indigent defense because the law enforcement agencies need the money.”
The SAA impediment is most clearly revealed in the following finding from the GAO report: “among the 4 percent of JAG grantees who reported that representatives of the indigent defense community were involved in the decision making process, 22 percent reported allocating funding for indigent defense. In contrast, among the 52 percent who reported that representatives of the indigent defense community were not involved in the decision making process, 2 percent reported allocating funding for indigent defense.”
So, with even the most well-structured and organized indigent defense system with the time to apply for federal grants facing long odds to successfully securing federal dollars, it is not at all surprising that the money from these 13 grants over the five-year period had a minimum impact on “non-systems.”
A multifaceted federal approach is needed to truly fix the right to counsel in America. First, we acknowledge that, even as the GAO report was being prepared, the Department of Justice had begun to shift some of its priorities to grant programs beyond those established between 2005-2010, including a Bureau of Justice Assistance grant designed to help jurisdictions meet the ABA Ten Principles. However, this approach will only impact those jurisdictions that acknowledge that the ABA Ten Principles are the relevant standards for systemic adequacy. But what of those jurisdiction that do not?
The best approach would be a “carrot and stick” approach that offered jurisdictions assistance to improve their services while granting the Department of Justice authority to bring civil actions against those areas of the country that are not currently ensuring a constitutionally adequate level of representation.
* GAO twice reports that $13.3 million out of a potential $21.2 million (or nearly 63%) went to indigent defense (in the executive summary and on page 17). However, no supporting documentation is given to support those numbers. Our analysis relied on Table 1 of the GAO Report (page 11) for appropriated dollars and Appendix II (page 61) for amounts awarded to indigent defense under each of these four grants. We are unsure of the reason for the discrepancy, but note that under either scenario significant money went to other criminal justice entities despite the money being targeted, in all or in part, for indigent defense.