Recommendations for Indigent Defense
Funding, Staffing and Training
Public Defense Systems Lack Adequate Funding
Inadequate funding, insufficient staffing, and unequal training opportunities are consistent challenges for public defense systems in all jurisdictions. Especially at the state and local level, the resources available to the district attorney or prosecutor often far exceed those available to the defender, creating a favorable situation for government power and a dangerous situation for individual liberty. With states facing budget shortfalls and the federal government under pressure to reduce the deficit, the already-underfunded indigent defense programs that protect the life, liberty, and property of Americans are particularly vulnerable.
Congress and the Administration Should Ensure Adequate Funding, Staffing, and Training
Legislative
1. Provide Funding for John R. Justice Prosecutors and Defenders Act
Congress should fully fund the John R. Justice Act, which authorizes student loan repayment assistance for prosecutors and public defenders.33 This program improves public safety by assisting prosecutor and defender offices in their ability to hire and retain high-quality lawyers.34 The law authorizes up to $10,000 per year in education debt assistance for prosecutors and defenders who agree to maintain that employment for three years.35 Unfortunately, the current FY 2010 appropriation of $10 million, $5 million of which goes to prosecutors, limits the program’s impact on indigent defense systems.
Congress could make it financially feasible for young attorneys to serve in indigent defense systems by supporting a national fellowship program to cultivate and train the next generation of defenders. The fellowship could combine loan forgiveness with federal funding for hiring entry-level attorneys. This program could be modeled on Public Defender Corps, a project of Equal Justice Works and the Southern Public Defender Training Center that is currently funded by a grant from the Bureau of Justice Assistance.36 Public Defender Corps is a three-year fellowship program for bright young attorneys dedicated to providing excellent representation to indigent clients. The program matches these attorneys with public defender offices and sponsors their work for three years. Congress should support and provide resources to expand such efforts.
2. Dedicate Indigent Defense Funding in Federal Grant Programs
Congress should provide sufficient financial support to states, local governments, and territories for the provision of indigent defense services comparable to federal support for prosecution. To this end, Congress should allow for exceptions to the required equal allocation between prosecutors and defenders for federal grants for capital case training. This would enable states to use the grants to create parity between prosecution and indigent defense resources.37 Additionally, Congress should permit states to use grants under this program to hire counsel for capital defendants.
Although indigent defense is currently a permitted expenditure of Byrne JAG funds, states may be unaware of this because it is not explicit in the statute.38 Congress should amend the Byrne JAG authorizing legislation, adding indigent defense to the list of seven specific program categories identified in the statute. This will clarify for DOJ and state personnel that support for indigent defense services is one of the central purposes of the Byrne JAG programs.39 Furthermore, either Congress, through legislation, or the DOJ, through its rulemaking authority,40 can require that each state include at least one representative of the state’s indigent defense systems as a member of its State Administering Agency (SAA), which distributes the funds. This will ensure, at a minimum, that the needs and interests of indigent defendants are considered during the SAA’s deliberation process, and will highlight to the indigent defense community its right to seek Byrne JAG funding.
3. Reduce Overcriminalization through Civil Infraction Reform
To relieve the overwhelming caseloads of public defenders, states should re-classify certain non-violent crimes as civil infractions for which civil fines would be imposed rather than prison sentences. This would reduce the number of cases that public defenders must handle at a single time. To aid in states’ civil infraction reform efforts, Congress should provide funding for states to establish criminal justice coordinating committees to consider reclassification of certain non-violent crimes to civil infractions, thereby alleviating some of the burden currently placed on indigent defense systems.41
4. Create an Independent National Center for Public Defense Services
Congress should adopt the recommendation of the ABA that the federal government establish and fund a National Center for Public Defense Services to serve as an independent, national oversight authority that would strengthen state public defense services by conducting and hosting public defense training programs, and administering federal funds for state public defense programs. For the past thirty years, the ABA has supported the establishment of an independent federal Center for Defense Services to serve this function.42 The concept was also endorsed in the 2009 report Justice Denied issued by the National Right to Counsel Committee. DOJ’s Access to Justice Initiative, launched in March 2010, is an important first step. Under Professor Laurence Tribe’s leadership it has brought needed attention to public defense reforms. However, as discussed above, it is critical that public defenders have the independence that a National Center for Public Defense Services would provide, especially given the potential for serious conflict of interest inherent in indigent defense work.
Executive
Each year, the Bureau of Justice Assistance within DOJ is allocated a certain amount of discretionary funds. In past administrations, a portion of these funds have been used to provide federal technical assistance and training for state, local, and territorial public defense systems, and the attorneys who participate in them.43 The Bureau of Justice Assistance should use a portion of its discretionary funding for these functions, as it did under Attorney General Janet Reno.
Transparency, Oversight and Accountability in Indigent Defense
The Current System Suffers from a Lack of Transparency, Oversight and Accountability
Currently, there is no mechanism for the collection, analysis, and dissemination of nationwide indigent defense data. In addition, despite statutory and regulatory reporting requirements,44 many states do not fully account for the manner in which they spend federal grant money for criminal justice initiatives.45 Without such data, decision-makers are left to form policy based on anecdotal information, speculation, intuition, presumption, and even bias. Furthermore, the federal government lacks a sufficiently strong mechanism for holding state and local governments accountable for violations of the Sixth Amendment right to effective assistance of counsel.
Transparency, Oversight, and Accountability will Protect Taxpayer Money and Individual Liberty
Legislative
1. Increase Transparency in Expenditure of Taxpayer Money by the States
Congress should reauthorize the Justice for All Act with the requirement that recipients of federal grant money for criminal justice indicate the recipient’s intended indigent defense expenditures and report the recipient’s actual indigent defense expenditures to the Bureau of Justice Assistance.
2. Establish Accountability for Violations of Individual Liberty by State and Local Government
Congress should provide DOJ with a cause of action to bring suit against those state or local governments that fail to protect the individual liberty of persons within their jurisdictions by providing inadequate counsel or no counsel to indigent defendants. DOJ’s authority to sue is currently limited to cases demonstrating a “pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”46 By extending this authority beyond juvenile justice to include all criminal justice systems, Congress would empower DOJ to rectify states’ systemic violations of the Sixth Amendment. Congress could also authorize DOJ to “deputize” private litigants to file federal suits on behalf of the United States, thereby ensuring that enforcement actions against non-compliant states could be sought without overburdening the Department.47
3. Fund Research to Determine Whether Unequal Access to Counsel Contributes to Racial Disparities
Congress should coordinate and fund a study to determine whether failure by states to provide constitutionally adequate public defense systems contributes to racial disparities within the criminal justice system. Because of the dearth of data on indigent defense, it is almost impossible to measure the impact of inadequate public defense systems on racial disparities in the criminal justice system. This study should be conducted by an entity that is independent of government, such as a university or impartial research foundation.
Executive
1. Require Transparency in Federal Grants
Because there is so little public data on indigent defense, it is extremely difficult to identify quantitatively measurable deficiencies in specific jurisdictions, and to hold accountable those responsible for violations of the right to counsel. The collection, analysis, and public presentation of this data would provide the transparency necessary for proper oversight. Therefore, DOJ should annually collect and publish data pertaining to: state-by-state indigent defense expenditures and funding sources; caseloads by provider and case types; methods of providing counsel; number of persons under the age of 18 tried in adult courts; indigency rates and criteria; race and ethnicity demographics of defendants and victims; and staffing of public defense agencies.
Additionally, DOJ should strengthen its regulations related to reporting requirements for state grant recipients and, if necessary, Congress should empower the DOJ to withhold a portion of a state’s formula grant for failure to meet reporting requirements. Finally, if granted by Congress, the DOJ should use its authority to pursue causes of action against states violating the Sixth Amendment to engage those states in negotiations to help them improve their indigent defense systems, and, if necessary, hold accountable with litigation those jurisdictions that continue to deprive people of the right to counsel.
2. Establish National Standards for Indigent Defense Services
The ABA provides objective guidelines for the provision of indigent defense services. This document, titled The Ten Principles of a Public Defense Delivery System, should form the basis for national standards for adequate indigent defense promulgated by DOJ.48 This document should also inform standards by which the federal government evaluates all state indigent defense systems, including standards for the awarding of grants and for state opt-in applications under Chapter 154 of Title 28.49
3. File Amicus Briefs to Support Individual Liberty against State Governments
DOJ should support current private litigation efforts by filing amicus briefs in support of cases that seek redress from states and localities that provide constitutionally inadequate indigent defense representation.50 The Attorney General should also continue to speak to criminal justice stakeholders, through speeches, op-eds, and briefings, about the need for indigent defense reform, with special focus on prosecutors and law enforcement.
Independence of Indigent Defense Attorneys
Public Defenders Currently Lack Independence, Hampering Performance
By design, public defense is necessarily provided by the same government that is accusing a defendant in a criminal case. As a result, conflicts of interest can easily arise in indigent defense systems. This is especially true in jurisdictions where politicians or judges appoint public defenders, pushing a defender’s economic interest in a different—and sometimes opposite—direction from the interests of his or her client. Attorneys representing indigent defendants but beholden to the prosecuting party or the judiciary for funding or employment may focus not on their client’s best interest, but rather on reducing backlogs of cases at the court, appearing “tough” on crime, or just keeping their jobs.51
Providing Independence for Public Defenders in both Funding and Decision-making will Reduce Central Government Control and Improve Representation
Legislative
Congress should establish an independent, non-partisan federal agency for federal defense that possesses funding and oversight responsibilities. This will reduce the conflict of interest that arises when a public defender is beholden to the opposing party (the state) or to the judge for funding. When a defender’s budget is dependent on the approval of judges, elected local boards, or others to whom she may be politically or professionally accountable, she will often come under pressure to shape defense strategies not according to the interests of her clients, but rather according to the political interests of those who control her budget.52 Achieving systemic improvements may require an autonomous and permanent office with greater resources and authority at its disposal. For the past thirty years, the ABA has supported the establishment of an independent federal Center for Defense Services to serve this function. In addition, the concept was endorsed in the 2009 report issued by the National Right to Counsel Committee.53
Alternatively, Congress could make local federal defender organizations, or the Administrative Office of U.S. Courts (for those districts without federal defender organizations), responsible for the appointments and payment of private, appointed counsel to represent indigent defendants in federal criminal cases.54 If the judiciary remains responsible for appointing counsel, Congress should require federal courts to accept (absent good cause to the contrary) recommendations for counsel made by federal public defenders, federal defender community organizations, the Capital Habeas Unit, or the Administrative Office. These organizations, each of which has a role in providing federal indigent defense services, are better positioned to offer independent, expert recommendations for the appointment of counsel, as compared with judges, who are meant to be the impartial arbiters between prosecutors and defense attorneys.
Executive
The Access to Justice Initiative, which was established within DOJ in March 2010, represents a positive first step in the creation of an independent federal voice for indigent defense. It has already served as an important voice within DOJ by advocating reforms to federal policies related to indigent defense. The creation of the initiative marks an important first step in the federal government’s acceptance of responsibility for addressing the national indigent defense crisis. In addition, the initiative’s efforts have resulted in states taking notice and seeking to engage the Department regarding ways to improve indigent defense at the state level. The Access to Justice Initiative should be maintained and strengthened.
If Congress chooses not to pursue an independent federal defender agency (see legislative recommendation above), an alternative approach is to formalize the criminal defense functions of the Access to Justice Initiative as an Office of Public Counsel Services (OPCS) within DOJ.55 The OPCS would be a congressionally created office headed by an assistant attorney general, who is appointed by the president, confirmed by the Senate, and reports directly to the Attorney General. The OPCS would develop objectives, priorities, and a long-term plan for federal support of state and local indigent defense systems. The office would have primary authority for the implementation of federal indigent defense policy and strategies necessary to carry out that policy.