Indigent Defense: DOJ Could Increase Awareness of Eligible Funding and Better Determine the Extent to Which Funds Help Support This Purpose
Published: 2012-05-09T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Sixth Amendment to the U.S. Constitution guarantees every person accused of a crime the right to counsel. States and localities generally fund indigent defense services, and the Department of Justice (DOJ) also provides funding that can be used for these services. GAO was asked to review federal support for indigent defendants. This report addresses, for fiscal years 2005 through 2010, the (1) types of support DOJ provided for indigent defense; (2) extent to which eligible DOJ funding was allocated or awarded for indigent defense, the factors affecting these decisions, and DOJs actions to address them; (3) percentage of DOJ funding allocated for indigent defense and how it was used; (4) extent to which DOJ collects data on indigent defense funding; and (5) extent to which DOJ assesses the impacts of indigent defense grants, indigent defense programs have been evaluated, and DOJ has supported evaluation efforts. GAO surveyed (1) all 4,229 grant recipients about funding allocations and (2) a sample of 253 public defender offices about factors influencing their decisions to apply for funding. Though not all survey results are generalizable, they provide insights. GAO also analyzed grant related documents and interviewed relevant officials.
section_title: What GAO Found
paragraphs: The Department of Justice (DOJ) administered 13 grant programs from fiscal years 2005 through 2010 that recipients could use to support indigent defense, 4 of which required recipients to use all or part of the funding for this purpose. DOJ also provides training to indigent defense providers, among other things.
From fiscal years 2005 through 2010, recipients of the 4 grants that required spending for indigent defense allocated or planned to use $13.3 million out of $21.2 million in current dollars for indigent defense. However, among the 9 grants that did not require allocations or awards for indigent defense, two-thirds or more of state, local, and tribal respondents to GAOs surveys reported that they did not use funds for this purpose, partly due to competing priorities. DOJ has listed the grants on its website. However, no more than 54 percent of grantees or public defender offices responding to GAOs surveys were aware that such funding could be used to support indigent defense. Taking steps to increase awareness would better position DOJ to help ensure that eligible grantees are aware that they can access federal funding to help address their needs. DOJ officials acknowledged that opportunities exist to enhance grantees awareness.
When recipients allocated funding for indigent defense, the amount was generally small relative to the total award and most commonly used for personnel and training. For instance, among grant recipients who reported in GAOs surveys that they had allocated funding for indigent defense, allocations as a percentage of total awards ranged from 2 percent to 14 percent.
DOJ generally collects data on funding allocated for indigent defense when the grant program requires such funding or identifies it as a grant priority, but does not do so in two juvenile-focused grants. According to DOJ, it does not collect such data in these two programs because indigent defense is 1 of 17 purposes for which grant funds can be used. GAO has previously reported that agencies should collect data to support decision making, and the Attorney General has committed to focusing on indigent defense issues. Collecting data on the amount of funding from these two grants that is used to support indigent defense would position DOJ to better assess if it is meeting the Attorney Generals commitment.
DOJ assesses the impact of indigent defense grant funding and has mechanisms to help indigent defense providers evaluate services. All 9 of the DOJ grant programs that required or prioritized funding to be used for indigent defense included output measures that described the level of grant activity, such as the number of defenders hired, and 7 of the 9 included outcome measures that described the intended results of the funds, such as the percent increase in defendants served. Nine of the 118 public defender offices or agencies that responded to GAOs survey provided GAO with a copy of an evaluation that had been conducted of their office; those that did not most frequently cited lack of personnel (28 of 62) and lack of expertise or the need for technical assistance (26 of 62) as the reasons. DOJ has mechanisms that could address these challenges. For instance, DOJ provides technical assistance through a website.
section_title: What GAO Recommends
paragraphs: GAO recommends that DOJ increase grantees awareness that funding can be allocated for indigent defense and collect data on such funding.
DOJ concurred with the recommendations.

section_title: Letter
paragraphs: Pursuant to the Sixth Amendment to the U.S. Constitution, every person  accused of a crime is afforded the right to have counsel in his or her  defense, even if unable to afford such representation. Individuals  accused of a crime but unable to afford representation—referred to as  indigent defendants—often rely on entities such as public defender offices  for the provision of counsel. Several organizations, including the National  Legal Aid and Defender Association, conducted national studies of  indigent defense, pointing out many challenges in providing counsel  across the country, including inadequate funding of defense programs as  a whole, inadequate compensation for assigned counsel, lack of  investigative resources, inexperienced counsel, and understaffing of  public defense offices. In affording indigent defendants their right to  counsel, both state and local governments generally decide the type of  indigent defense programs to employ and how to fund them.
Throughout this report, we use “indigent defense” to refer to direct and indirect activities  that help ensure indigent defendants are afforded counsel in criminal cases. These  activities may include hiring additional public defenders, investigators, or other support  staff; providing training for public defenders; making technological improvements in public  defenders’ offices or systems; or providing loan repayments to help retain public  defenders. which retain limited, inherent sovereignty—are not bound by restraints  placed upon the federal or state governments through the Bill of Rights or  other amendments to the U.S. Constitution, many tribal governments  choose to provide indigent defense services and face similar challenges  as state and local governments in doing so.
You requested that we assess federal funding and other federal support  to state, local, and tribal governments to assist them in providing counsel  to indigent defendants. Specifically, this report addresses the following  questions:  1.  What type of support, if any, have DOJ and BIA provided for state,  local, and tribal indigent defense?  2.  For fiscal years 2005 through 2010, to what extent was eligible DOJ  and BIA funding allocated and awarded for indigent defense, what  factors affected decisions to allocate and award funding for this  purpose, and what actions have DOJ and BIA taken, if any, to  address these factors?  3.  When fiscal year 2005 through 2010 federal funding was allocated or  awarded for indigent defense, how did it compare to the total  allocations or awards made, and how did recipients use the funding?  4.  To what extent does DOJ collect data on indigent defense funding  when the grant program specifies that funds be allocated or awarded  for this purpose or highlights it as a priority?  5.  When a grant program specifies that funds be spent for indigent  defense or highlights it as a priority, to what extent does DOJ assess  the impacts of this grant funding, and to what extent have there been  evaluations of indigent defense programs and has DOJ supported  these evaluation efforts?
To determine what DOJ grant programs and BIA funding could be used  for indigent defense from fiscal years 2005 through 2010, we analyzed  the Catalog of Federal Domestic Assistance and DOJ’s website, and  consulted DOJ and BIA officials responsible for administering state, local,  and tribal grant and funding programs.recipients of relevant DOJ grants, and identified recipients of relevant BIA  funding through BIA’s annual budget justifications. Further, we  interviewed knowledgeable agency officials about the source of the grant  data and the controls in place to maintain the integrity of the data and  determined that the data were sufficiently reliable for our purposes. In  addition, we interviewed DOJ and BIA officials with knowledge of other  assistance the agencies provide to support indigent defense.
We obtained records of all  To determine the extent to which state, local, and tribal government  recipients allocated federal funding for indigent defense, the factors that  influenced their decisions, and the amounts allocated, we conducted  separate web-based surveys of all recipients of fiscal year 2005 through  2010 DOJ formula grants that could be allocated for indigent defense—  Juvenile  the Edward Byrne Memorial Justice Assistance Grant (JAG), Justice and Delinquency Prevention Grant Title II (JJDP) and the Juvenile  Accountability Block Grant (JABG)—and tribal governments that received  funding through BIA Tribal Courts tribal priority allocation (TPA)   Forty-six percent of  distributions from fiscal years 2005 through 2010.JAG recipients (1,818 of 3,963; including 89 percent of state agencies  and 45 percent of localities and tribes) completed the JAG survey; 89  percent of JJDP recipients (50 of 56) completed the JJDP survey; 82  percent of JABG recipients (46 of 56) completed the JABG survey; and  68 percent (105 of 154) of recipients completed the Tribal Courts TPA  survey. Because all recipients of JABG and JJDP funding were included  in our population and we received response rates of 82 and 89 percent,  we consider our results generalizable to the population of JABG and  JJDP recipients. While all eligible members of our target population of  JAG recipients and recipients of BIA Tribal Courts TPA distributions were  included in our survey, due to the relatively low response rates and the  possibility of other errors all questionnaire surveys face, our results  represent only those respondents who participated in our survey and  should not be generalized to the population of JAG recipients or  recipients of BIA Tribal Courts TPA distributions. Moreover, dollar  amounts reported by JAG respondents have limitations and should be  treated as estimates. See appendix I for additional discussion of these  limitations and the reasons they occurred, and additional details of our  survey methods. However, the responses provide insights into the extent  to which JAG funding and BIA Tribal Courts TPA distributions have been  allocated for indigent defense. Moreover, to determine the purposes for  which this funding was used and to identify the most frequently reported  uses, we conducted follow-up interviews with selected survey  respondents who reported allocating funding for indigent defense.
Further, to determine the extent to which DOJ awarded eligible  discretionary grants for indigent defense, we obtained project descriptions  of grants available for indigent defense from DOJ. We reviewed these descriptions to identify the number and amount of grants used either all or  in part for indigent defense and the uses of these funds.
To determine what actions, if any, DOJ and BIA have taken to address  factors influencing recipients’ decisions to allocate funding for indigent  defense, we interviewed DOJ and BIA officials responsible for each type  of funding. We also reviewed DOJ’s guidance to recipients to determine  the extent to which DOJ communicated that funding could be used for  indigent defense programs. We compared this guidance against relevant  statutes, and DOJ’s stated commitment to support indigent defense.
In addition, we reviewed DOJ grant documentation to identify grants for  which indigent defense was identified as a priority or purpose of the grant.  For these grants, we reviewed grant performance measures outlined in  DOJ grant solicitations. We also conducted interviews with relevant DOJ  officials about the extent to which DOJ collects data on whether grants  were allocated or awarded for indigent defense and measures the impact  resulting from grant funds for indigent defense. We analyzed this  information to determine the status of DOJ’s efforts and the mechanisms  available to collect such data and assess the impact. We compared  DOJ’s measures against criteria in Office of Management and Budget  (OMB) guidance and our prior work on performance measures, which  states that leading organizations promote accountability by establishing  results-oriented, outcome goals and corresponding performance  measures by which to gauge progress towards attaining these goals. To  determine whether performance measures were outcome-oriented, two  analysts also independently reviewed performance measures DOJ  established to assess whether the measures focused on the intended  result of the program. The analysts then met to discuss and resolve any  differences in the results of their analyses.
Further, to determine the extent to which evaluations had been conducted  of indigent defense programs, we conducted a web-based survey of a  random sample of 253 public defender offices or agencies from among  841 identified nationwide; 118 offices or agencies completed the  questionnaire for an unweighted response rate of 47 percent.  Respondents 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. Due 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. However, the results provide  insights into the evaluation conducted of public defender offices and the  challenges associated with conducting such an evaluation. In addition, we  conducted a literature search of peer-reviewed journals. In December  2011, we held a listening session at a National Legal Aid and Defender  Association conference where public defenders described challenges to  conducting evaluations, among other topics. Finally, to identify actions  DOJ has taken to evaluate indigent defense systems, we reviewed  studies funded or conducted by DOJ and interviewed DOJ officials about  its efforts to evaluate indigent defense systems. Additional details on our  scope and methodology are contained in appendix I.
We conducted this performance audit from February 2011 to May 2012 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  analysis based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our analysis based on our audit  objectives.
subsections: section_title: Background
paragraphs: States and localities have developed and largely funded their own  indigent defense systems. To do so, they have generally adopted one or  more of the following methods for providing indigent defense—employing  full or part-time public defenders to handle the bulk of cases requiring  counsel; entering into contracts with private attorneys, often after a  bidding contest, to provide counsel; or developing a list, or “panel,” of  private attorneys who accept a predetermined fixed rate and from which  the court appoints as defense counsel when needed. Further, depending  on the state, funding for the indigent defense system is provided by the  state, localities within the state, or a combination of state and local  funding.
According to DOJ, as of its most recent census of public defender offices  issued in 2007, 22 states have established statewide—and state  funded—public defender agencies to provide indigent defense in which a  central office oversees the operations, policies, and practices of all public  defender offices located in the state. In another 27 states, local  jurisdictions—largely counties—are responsible for providing and, in  whole or in part, funding, indigent defense services. The remaining state  funds 100 percent of its indigent defense services, which are provided by  assigned counsel, but does not have city, county, or state public defender  offices.
Unlike states, tribes—which retain limited, inherent sovereignty—are not  bound by restraints placed upon the federal or state governments through  the Bill of Rights or other amendments to the U.S. Constitution, including  the Sixth Amendment’s right to counsel provision.  However, the Indian  Civil Rights Act of 1968 (ICRA), as amended, limits the extent to which  tribes may exercise their powers of self-government by imposing  conditions on tribal governments similar to those found in the Bill of  Rights to the U.S. Constitution. For example, ICRA extends the  protections of free speech, free exercise of religion, and due process and  equal protection under tribal laws. Among other protections afforded  under ICRA, tribes must also afford a defendant the right to be  represented by counsel at his or her own expense, and, as amended, the  right to be provided counsel at the tribe’s expense if a sentence of  imprisonment for more than 1 year is sought.
DOJ and, in the case of tribes, DOI are the primary federal agencies that  play a role in supporting indigent defense.
First, DOJ, as the agency responsible for ensuring the fair and impartial  administration of justice for all Americans, works to provide support to all  participants in the justice system. Further, in a June 2010 speech before  a nonprofit organization dedicated to protecting the rights of individuals in  North Carolina, the Attorney General identified a crisis in the criminal  defense system, and stated the department’s commitment to focusing on  indigent defense issues and developing and implementing solutions.  Within DOJ, two components provide services that could support indigent  defense providers, the Access to Justice Initiative (ATJ) and the Office of  Justice Programs (OJP).
Established in March 2010 to address criminal and civil access to  justice issues, ATJ is charged with helping the justice system  efficiently deliver outcomes that are fair and accessible to all,  irrespective of wealth and status. ATJ staff work within DOJ, across  federal agencies, and with state, local, and tribal justice system  stakeholders to increase access to counsel and legal assistance and  to improve the justice delivery systems that serve people who are  unable to afford lawyers. According to DOJ, ATJ is comprised of  seven staff and, in fiscal year 2011, had a budget of $1.27 million.  ATJ staff focused their efforts on indigent defense as well as a range  of pressing criminal and civil access to justice issues, including  foreclosure and veterans’ affairs.
OJP works in partnership with the federal, state, local, and tribal  justice communities—which include indigent defense providers—to  identify the most pressing crime-related challenges confronting the  justice system; to provide training, coordination, and innovative  strategies and approaches for addressing these challenges; and to  provide grant funding for implementing these strategies. Within OJP,  several bureaus provide research, technical assistance, and funding  that could support indigent defense providers. Specifically, the  National Institute of Justice (NIJ) seeks to provide objective,  independent, evidence-based knowledge and tools to meet criminal  justice challenges, particularly at the state and local levels. Among  other things, NIJ funds research and development, assesses  programs and policies, and publicizes its findings. In addition, the  Bureau of Justice Statistics (BJS) serves as DOJ’s primary statistical  agency, collecting, analyzing, publishing, and disseminating  information on criminal justice systems. Finally, both the Bureau of  Justice Assistance (BJA) and the Office of Juvenile Justice and  Delinquency Prevention (OJJDP) provide training, technical  assistance, and grant funding designed to enhance and support the  criminal and juvenile justice systems, respectively. Such funding may  be awarded through formula grants, which are awarded on a  noncompetitive basis generally using statutorily defined calculations,  or discretionary grants, for which applicants generally compete for  funding.
Second, within DOI, BIA is responsible for supporting tribes in their efforts  to ensure public safety and administer justice as well as to provide related  services directly to, or through contracts or compacts with, federally- recognized tribes.law enforcement, detention, and tribal court programs. In addition, the  Division of Tribal Justice Support for Courts within BIA’s Office of Justice  Services works with tribes to establish and maintain tribal judicial  systems. This includes conducting assessments of tribal courts and  providing training and technical assistance on a range of topics, including  establishing or updating law and order codes. Further, tribal courts may  receive funding through BIA’s TPA. All federally-recognized tribes are  eligible to receive TPA funds—either through contracts or compacts—for  operating tribal programs and, in general, these funds are available for  use to provide basic tribal services, such as social services, child welfare,  natural resources management, and tribal courts.
section_title: DOJ and BIA Make Funding, Training, and Technical Assistance Available to Support Indigent Defense
paragraphs: DOJ and BIA provide funding, training, and technical assistance that  could support indigent defense, which may help to address challenges  that public defenders face. Specifically, public defender offices or  agencies that responded to our survey most frequently reported that  obtaining adequate funding (75 of 106, or 71 percent) and providing  appropriate compensation for their attorneys (77 of 107 or 72 percent)  were extremely or very challenging to the ability of their office or agency  to provide indigent defense services.respondent explained that their office’s best attorneys leave to pursue  positions offering higher compensation.
For instance, one survey  DOJ makes funding available through formula and discretionary grants  that could be used for indigent defense. Specifically, we identified 13  grant programs that DOJ administered from fiscal years 2005 through  2010 that recipients could use for this purpose. Three of these  programs—the John R. Justice Program (JRJ), Capital Case Litigation  Initiative (CCLI), and Juvenile Indigent Defense National Clearinghouse  Grant (JIDNC)—required recipients to allocate or use funding for indigent  defense, either because of its authorizing statute or requirements that  DOJ set in its grant solicitation. In addition, a fourth program—the  Wrongful Conviction Review Program (WCR)—limits eligibility for funding  to nonprofit organizations, as well as public defender offices, that  represent convicted defendants (who are, according to DOJ, indigent) in  claims of innocence. As a result, for the purposes of our review, we  consider the WRC grant to require that funding be used for indigent  defense. See table 1 for a description of the DOJ grant programs that  require that funding be used for indigent defense.
DOJ also administered nine grant programs from fiscal years 2005  through 2010 that recipients could choose to allocate or award to indigent  defense, but were not required to do so. In five of these nine programs— the JAG, JABG, Tribal Juvenile Accountability Discretionary Grant  (TJADG), Byrne Competitive Grant Program, and the Tribal Civil and  Criminal Legal Assistance Grant (TCCLA)—DOJ identified indigent  defense as a priority or specific purpose of the grant. It did so by  identifying indigent defense either as a purpose area, a stated priority in  its grant solicitation, a specific category in the grant, or as a national  initiative. According to DOJ, it established indigent defense as a priority to  encourage spending in this area. See tables 2 and 3 for a description of  the DOJ grant programs that do not require funding to be used for  indigent defense, although recipients can use funds for such purposes.
In addition, we determined that BIA funding could be used for indigent  defense. According to BIA officials, if tribes choose to use BIA funding for  this purpose, this funding would come from the tribes’ Tribal Courts TPA,  which are distributed pursuant to contracts or compacts.contracts and compacts, tribes, rather than BIA, determine the best use of  their funds. BIA does not specify requirements for spending levels on  particular tribal court services, including indigent defense, because the   Through  nature of tribal sovereignty precludes BIA from placing requirements on  how tribes spend their TPA funding. Tribes allocated a total of  approximately $22 million through their Tribal Court TPA in each fiscal  year from 2005 through 2010.
Further, within DOJ, BJA announced a new solicitation in April 2012 that  focuses on helping indigent defense systems adhere to principles  established by the American Bar Association (ABA) for public defense  delivery systems. These principles, approved in 2002, were created as  a practical guide for those creating and funding new, or improving  existing, public defense delivery systems. The principles include the  fundamental criteria necessary to design a system that provides effective,  efficient, high-quality, ethical legal representation for indigent defendants  in which defenders have no conflicts of interest, such as representing two  defendants in the same case. According to DOJ, BJA will award $1.4  million of new discretionary grant funding to support projects that help  make achievement of these principles a reality. According to officials from  BJA and ATJ involved in developing the solicitation, BJA and ATJ staff  worked closely together to develop the grant, and also conducted  outreach to indigent defense advocates to determine the type of  assistance that would benefit public defenders. The officials explained  that the grant will be flexible enough that a diverse group of public  defender offices will be eligible to apply for funding because it will allow  both less developed and more developed offices to identify areas for  improvement in adhering to the ABA principles.
In addition to funding, DOJ, BIA, and the Administrative Office of the U.S.  Courts (AOUSC) provide training and technical assistance to indigent  defense providers.Assistance Center (NTTAC) accepts requests for and provides training  and technical assistance to state, local, and tribal criminal justice   For instance, BJA’s National Training and Technical  stakeholders. DOJ has also awarded funding to the ABA to convene a  focus group of 18 successful reformers from across the country to  develop strategies for reforming indigent defense systems. In its January  2012 report to DOJ, the group suggested measures DOJ could take to  improve indigent defense, including providing funding for programs that  bring training and resources to regions that are most in need, among  other things. In addition, BJA has a cooperative agreement with  American University to provide technical assistance to criminal courts,  including indigent defense providers. For instance, American University  conducted a workshop on improving the criminal case process with the  Texas Indigent Defense Board. Furthermore, DOJ (through ATJ and the  U.S. Attorney’s Offices), BIA, and AOUSC’s Office of Defender Services  have partnered to develop the Tribal Court Trial Advocacy Training  Program, which will consist of a series of trainings for tribal court  personnel, including defenders, prosecutors, and judges. The first such  training occurred in August 2011, and the second in March 2012.  According to DOJ and BIA officials, an additional six trainings are planned  through January 2013. A BIA official responsible for conducting the  trainings stated that the trainings have resulted in court personnel coming  together to create an improved tribal justice system.
section_title: Unless Required, Few Recipients Allocated or Planned to Use Any Federal Funding for Indigent Defense, in Part Due to Competing Priorities
paragraphs: Recipients of the four grant programs requiring funds to be used in whole  or in part for indigent defense from fiscal years 2005 through 2010  allocated or planned to use $13.3 million out of $21.2 million—or 63  percent—of available funds for state, local, and tribal indigent defense.  For instance, 19 of 33 grantees of the Capital Case Litigation Initiative  used $3.3 million to provide training to indigent defense attorneys who  handle death penalty cases. See appendix II for additional information  about the allocation and use of these grants for indigent defense.
However, two-thirds or more of the survey respondents who were  recipients of the DOJ formula grants for which indigent defense was not a  required use or Tribal Courts TPA distributions reported that they did not  allocate funding for indigent defense, partly because of other competing  priorities, such as law enforcement needs. As shown in figure 1, survey  respondents for JAG State Administering Agencies (SAA)—the  designated agencies in each state that establish funding priorities and  coordinate JAG funds among state and local justice initiatives—and  survey respondents for Tribal Courts TPA distributions more frequently  reported allocating funds for indigent defense than JJDP, JABG, or local  and tribal JAG survey respondents. (See appendix III for additional information on the percentages of respondents who reported allocating  nondiscretionary funding for indigent defense.)
Similarly, as displayed in figure 2, our analysis of discretionary grants  showed that no more than 25 percent was awarded for indigent defense  from fiscal years 2005 through 2010. For example, the percentage of  grants that was awarded fully or in part for indigent defense ranged from  1.3 percent for the Justice and Mental Health Collaboration program to 25  percent for the TCCLA grant.on the number of discretionary grants awarded for indigent defense.
section_title: When Recipients Allocated Funding for Indigent Defense, in General, the Amount Was Small Relative to the Total Award and Funding Was Used for Personnel and Training
paragraphs: Those recipients who chose to allocate or use funding for indigent  defense generally reported providing a small amount of funding for  indigent defense relative to their total awards. Specifically, the award  amounts reported by JAG, JABG, JJDP, and Tribal Courts TPA recipients  who allocated funding to indigent defense ranged from 2 percent of the  total award (in the JJDP program) to 14 percent (in the JABG program).  Similarly, in our review of discretionary grants, awards for indigent  defense were generally small relative to total awards, ranging from at  most 0.4 percent of the total award (in the Justice and Mental Health  Collaboration and Drug Court Discretionary Grant programs) to at most  8.1 percent (in the Tribal Court Assistance Program).
Figure 9 shows indigent defense allocations as a percentage of these  survey respondents’ total awards, in current dollars unadjusted for  inflation, while figure 10 shows discretionary awards for indigent defense  as a percentage of total awards, in current dollars. See appendix IV for  additional details about these allocations and awards by year.
Recipients most frequently reported using indigent defense funding for  personnel and training, which may help to address challenges that public  defenders face. More specifically, public defenders that responded to our  survey most frequently reported that financial challenges very greatly or  greatly impacted their ability to increase compensation for people working  in the indigent defense system, hire additional attorneys, travel to or  register for external training, and hire clerical support or investigators.  Further, indigent defense providers we spoke with during a panel  discussion at the National Legal Aid and Defender Association’s annual  conference confirmed this position, stating that critical funding needs for  public defender programs included personnel—both attorneys and  support staff—as well as training.
JABG and JJDP recipients who had allocated funding for indigent  defense most commonly reported using this funding for training and  personnel, and our review of discretionary grants found that indigent  defense funding was generally used for these same purposes. Figures 11  and 12 illustrate the most frequently reported uses of the grants. Similarly,  selected recipients of JAG and BIA Tribal Courts TPA distributions with  whom we spoke most commonly reported using funding for personnel.
In terms of personnel, grantees funded both attorneys and support staff,  including social workers, investigators, or substance abuse and treatment  specialists. Support staff help to conduct investigations, process clients  as they come in for assistance, or address needs clients have beyond  their court case, such as challenges with substance abuse, mental health,  employment, or housing. For instance, one JAG grantee reported that  funds were used to hire an attorney in a county public defender office to  represent veterans in the criminal court systems. The attorney represents  the veterans at the county’s veterans’ court and also conducts significant  outreach to treatment providers in the county to help ensure veterans can  obtain any additional treatment they may need. In terms of training,  grantees funded activities that included instruction on juvenile law and  technology. Moreover, one grantee—The Bronx Defenders—received a  Byrne Competitive grant to provide technical assistance to other public  defender organizations on the public defense model they use, known as  holistic defense (see sidebar).
section_title: DOJ Could More Consistently Collect Data on the Amount of Funding Allocated for Indigent Defense When Programs Identify It as a Priority
paragraphs: For grant programs that require funding be used at least in part for  indigent defense, DOJ collects data on whether recipients have allocated  funding for indigent defense and the allocation amounts, which allows  DOJ to determine if funding was used in accordance with grant  requirements. For instance, in the John R. Justice Program, which funds  student loan repayments for public defenders and prosecutors, DOJ  collects data on the number and amount of loan repayments made to  state and local public defenders. In addition, for the Capital Case  Litigation Initiative, DOJ can determine the amounts allocated for indigent  defense because the grant funds must be allocated equally between  prosecution and defense.
In addition, DOJ collected data on indigent defense funding for the Byrne  Competitive and TCCLA grants when funding for indigent defense was a  priority. Specifically, in 2009, when hiring public defenders was a national  initiative for the Byrne Competitive grant, DOJ collected data on awards  by national initiative and, thus, collected data on grant funding awarded  for indigent defense under this initiative. Similarly, for the TCCLA grant,  DOJ collects data on the grant category under which awards are made  and, therefore, can identify funding awarded under the grant category  related to indigent defense.
Further, DOJ has developed mechanisms to collect data on whether JAG  recipients have allocated funding for indigent defense and the amount  allocated. First, so that DOJ can determine the number of grantees that  are using funds for a particular purpose, when applicants apply for JAG  funding, DOJ allows them to identify which of the more than 150 “project  identifiers” best describe the proposed activities for which they plan to use   According to BJA officials, DOJ created an indigent defense  the funding.“project identifier” in fiscal year 2011 to better track indigent defense  spending, given that indigent defense is listed as a priority in the fiscal  years 2010 and 2011 JAG solicitations. Further, in its fiscal year 2011  solicitation, DOJ required that JAG applicants identify up to 5 project  identifiers to catalogue their allocations. According to DOJ grant program  officials, they established this requirement because they wanted to be  able to track grantees’ uses of the funds and respond to questions from  Congress and others about these uses. DOJ officials stated that they  limited the requirement to 5 project identifiers to help ensure that the  identifiers selected were most representative of the projects being funded.  BJA also noted that, during its application review, BJA staff have the  option to select additional project identifiers that would assist in the  description and tracking of projects being funded.
Second, as part of its efforts to revise JAG performance measures, which  were made partly in response to our review, BJA has drafted a  performance measure for the amount of funding spent on defense.  Moreover, DOJ recently improved its efforts to collect data on the extent  to which JAG grantees have allocated funds for indigent defense, but  DOJ does not collect data on whether JABG or TJADG grantees have  allocated funding for this purpose. According to an OJP official  responsible for the grant system, all project identifiers are available to any  OJP grantees, including JAG as well as JABG and TJADG grantees.  However, unlike the JAG program, JABG and TJADG grantees are not  required to identify project identifiers to describe proposed project  activities when applying for funding; therefore grantees may choose not to  use them. Moreover, 3 of the 5 JABG survey respondents who reported  allocating funding for indigent defense with whom we spoke reported that  they were unaware of an indigent defense project identifier, and an  additional respondent reported being aware, but unlikely to use it.
DOJ officials responsible for the JABG program explained that they  collect data on grantees’ allocation of funds for the JABG purpose area  that includes hiring court-appointed defenders, but the data are not  detailed enough to identify allocations specifically for indigent defense.  Moreover, the officials noted that this purpose area is only 1out of 17  JABG purpose areas. Similarly, the purpose area that includes hiring  court-appointed defenders is only 1 out of 17 TJADG purpose areas, and  TJADG data we obtained from DOJ did not identify whether funding was  awarded for indigent defense. In addition, JABG and TJADG applicants  have not been required to identify project identifiers because, according  to an official from OJJDP, the office that administers the programs,  OJJDP was not aware that the project identifiers available to JAG  grantees could also be used by OJJDP staff and grantees. We have  previously reported that agencies should collect sufficiently complete,  accurate, and consistent data to measure performance and support  decision making at various organizational levels. General has identified a crisis in criminal defense and committed the  department to focusing on indigent defense issues and developing and  implementing solutions, collecting data on whether grantees have  allocated or awarded funding for indigent defense could help DOJ better  assess whether funding is supporting this commitment.
GAO/GGD-96-118.
section_title: DOJ Assesses the Impact of Indigent Defense Grant Funding and Has Mechanisms to Help Indigent Defense Providers Evaluate Services
subsections: section_title: DOJ Has Measures to Assess the Impact of Indigent Defense-Related Grant Funding
paragraphs: According to the Office of Management and Budget (OMB), performance  measurement indicates what a program is accomplishing and whether  results are being achieved. For all DOJ grant programs that either  require funding be used for indigent defense or identify it as a priority,  DOJ has or is developing indigent defense-related performance  measures and requires grantees to provide data to inform these  measures. For example, for the Byrne Competitive, TCCLA, TJADG, and  JABG programs—where DOJ has prioritized indigent defense-related  funding—DOJ requires grantees to report indigent defense-related  measures such as the number of public defenders hired. In the JAG  program, DOJ is developing a measure—the number of cases   For a list  defended—in its revisions to its online performance measures.of performance measures DOJ uses to assess the impact of funding used  for indigent defense-related activities, see appendix VI.
OMB guidance outlines four types of performance measures agencies  may use to assess program impact: those that describe the level of  activity that will be provided over a period of time (output measures),  those that describe the intended result of carrying out the program  (outcome measures), those that indicate how well a procedure, process,  or operation is working (process measures), and those that describe the  resources used to produce outputs and outcomes (input measures).  While each type of measure provides information that can help assess  the impact of the program, OMB also states that appropriate performance  goals should, among other things, focus on outcomes, but use outputs  when necessary. In addition, OMB strongly encourages the use of  outcomes because they are more meaningful to the public than outputs.  As we have previously reported, developing output measures is a step  toward developing outcome measures, and an important initial step in  measuring progress. However, we have also previously reported that  leading organizations promote accountability by establishing results- oriented, outcome goals and corresponding performance measures by  which to gauge progress towards attaining these goals.
We found that all nine of the DOJ grant programs that required or  prioritized funding for indigent defense included output measures that  described the level of grant activity. In addition, seven of the nine grant  programs included outcome-oriented performance measures that  described the intended results of the program. For example, for the  Juvenile Indigent Defense National Clearinghouse Grant, DOJ developed  the outcome measure “percentage of people exhibiting increased  knowledge of the program area,” which demonstrates a clear linkage to  the program goals to improve juvenile indigent defense, to build the  capacity of the juvenile indigent defense bar, and to promote the zealous  and effective advocacy for juvenile indigent defendants. See appendix VI  for our more detailed analysis of the measures used.
The John R. Justice and JAG programs do not include indigent defense- related outcome-oriented performance measures that gauge impacts or  results. However, DOJ requires states that receive John R. Justice  funding to submit, at the conclusion of the grant, an assessment of the  program’s impact on retention of prosecutors and defenders in the state,  which would allow DOJ to assess whether the program is achieving  intended results. DOJ officials explained that they required grantees to  submit this assessment because the DOJ Inspector General is required in  the statute establishing the John R. Justice program to report on the  program’s impact on the retention of prosecutors and public defenders.
As a result, DOJ decided to require these assessments from recipients in  order to provide this information to the Inspector General, if requested.
In addition, according to DOJ officials, they have not developed indigent  defense-related outcome-oriented performance measures for the JAG  program because the ways in which JAG funds can be used vary  significantly across and within the seven purpose areas, making the  development of outcome-oriented measures that could capture the  intended results of the program difficult. Even among grantees that  allocated funding for indigent defense, the purposes varied significantly.  For instance, one JAG grantee with whom we spoke reported using  indigent defense-related JAG funds to update the case management  system at a public defender’s office, for which an outcome measure could  be the increase in the efficiency with which cases are handled, while  another used the funds to pay for an attorney, for which an outcome  measure could be the decrease in the number of cases each attorney  handles. Further, OMB has acknowledged that developing performance  measures for programs that, like JAG, address multiple objectives and  support a broad range of activities can be challenging. For programs that  focus funds on specific purpose areas, as JAG does, OMB states that  agencies can address the challenge by articulating national goals, and  then working with state and local entities to identify specific objectives  and measures linked to the national goals that the grantee will address.However, because indigent defense is not a JAG purpose area, such a  solution would not result in indigent defense-related measures. In  addition, DOJ officials stated that asking grantees to develop measures  would place an additional reporting burden on the grantees. DOJ officials  also stated that while they do not have indigent defense-related outcome- oriented measures in the JAG program, they do ask grantees to report on  what they have accomplished with their grants. Like an outcome  measure, this could allow DOJ to assess the results of the program.
section_title: Indigent Defense Providers Generally Reported That Evaluations of Their Services Have Not Been Conducted; DOJ Has Mechanisms to Support Such Evaluations
paragraphs: With its indigent defense-related performance measures, DOJ can assess  the impact of a grantee’s use of funds, such as whether the funding  resulted in an increase in the number of defenders hired. However, its  assessments are not intended to evaluate the effectiveness of a  grantee’s, or any indigent defense provider’s, programs or services, such  as whether the defender’s ability, training, and experience match the  complexity of the case, which is one of ABA’s principles for public  defense delivery systems. Instead, as we have previously reported,  evaluations may be used to assess a program’s effectiveness, identify  how to improve performance, or guide resource allocation. Moreover,  evaluation can play a key role in strategic planning and in program  management, providing feedback on both program design and  execution. For example, respondents to our survey of public defender  offices and agencies reported using evaluations for purposes such as  enacting system improvements (8), supporting funding requests (8), and  addressing caseload issues (4), among others. Of the 118 public  defender offices or agencies that responded to our survey, 9 provided us  with copies of evaluations that they had conducted of their office or  agency or that another entity conducted, such as a consultant or  oversight body.oversight committee for a local jurisdiction’s indigent defense services— collected data and used it to assess compliance with local indigent  defense standards. The evaluation considered professional   For example, one evaluation—conducted by the  independence; attorney qualifications; training; supervision; workload;  performance evaluation and discipline; support services; case  management and quality control; and reporting. Appendix VII provides  additional details on these evaluations.
Sixty-two percent (68 of 109) of public defender offices or agencies that  responded to our survey reported that no evaluation had been conducted  of their office or agency. Respondents who reported reasons for not  conducting an evaluation most frequently cited lack of personnel (46  percent, 29 of 63) and lack of expertise and/or the need for technical  assistance (43 percent, 27 of 63) as the reasons. Moreover,  respondents identified challenges to collecting data on factors that affect  their ability to provide indigent defense services—information that could  be used to conduct an evaluation. For example, 50 percent (59 of 118)  reported that the amount of face-to-face time a public defender spends  with a client—a potential indicator of effectiveness—is difficult or  burdensome to collect, and data on client satisfaction are also costly to  collect (18 percent, 21 of 118), difficult to measure (47 percent, 56 of  118), and imprecise (32 percent, 38 of 118). However, respondents also  reported currently collecting data on factors that DOJ and indigent  defense stakeholders report could affect the quality of indigent defense  services. For example, according to BJA, managing defender workloads  is important to ensuring that the administration of justice is fair and  equitable, and quality of service may be impacted when public defenders  are forced to manage too many clients with inadequate resources.  According to respondents, data currently being collected includes both  average caseload per public defender (86 percent, 96 of 111), and the  number of active cases per public defender (84 percent, 94 of 112).  Respondents also reported collecting data on average salary or hourly  rate of public defenders (76 percent, 83 of 109)—a factor that indigent  defense stakeholders have identified as relevant to the ability to attract  and retain qualified attorneys. Appendix VIII provides additional  information on the extent to which public defender offices or agencies  reported collecting data that could be used to conduct an evaluation and  the associated challenges or limitations of the data.
DOJ has mechanisms that could help to address some of the evaluation  challenges that indigent defense offices and agencies reported, including  a lack of expertise or the need for technical assistance. For instance, BJA  provides technical assistance with evaluation through its Center for  Program Evaluation and Performance Measurement website, and makes  technical assistance available to SAAs and BJA applicants, among  others.
Further, DOJ reported that it has funded more narrowly scoped,  nongeneralizable, case studies intended to help inform a broader study of  indigent defense and provide insights, as well as available resources, for  criminal justice stakeholders. For instance, from fiscal years 2005 through  2010, the period of our review, the National Institute of Justice (NIJ)  funded one study that described how outcomes differed when murder  defendants were represented by public defenders versus court-appointed   The study found that, in the city evaluated,  private attorneys in one city.there were significant differences between the two groups on several  dimensions. Specifically, defendants represented by the public defender  office had shorter average sentences, were less likely to receive a life  sentence, had less expected time served, and were more likely to plead  guilty.
See http://nij.gov/nij/topics/courts/indigent-defense/2010-symposium/welcome.htm for  information about the symposium. The 2010 symposium was an update to a 1999  National Symposium on Indigent Defense, after which a report was released. See  http://www.sado.org/fees/icjs.pdf for this report. domestic and international best practices for indigent defense and to  develop an agenda on criminal indigent defense research. In addition to  providing suggestions for future research, the workshop produced a  report containing 40 recommendations to ATJ and NIJ. Among the  major themes highlighted in the report was participant support for  evidence-based research on indigent defense, including evaluation of  successful domestic and international practices. DOJ officials stated  that this report was completed consistent with NIJ’s practice of  documenting conference proceedings and gathering information from  stakeholders.
Further, DOJ has taken steps to identify characteristics of model  programs, including awarding grant funding to the National Criminal  Justice Association to identify innovative use of JAG funds to support  indigent defense, among other criminal justice areas.
Moreover, in addition to the studies it has conducted or funded in the  past, in February 2012, NIJ issued a solicitation—Social Science  Research on Indigent Defense—that seeks applications for research on  the fundamental issues surrounding access to legal services and the  need for quality representation at the state and local level. Proposed topics include three areas: juvenile and adult defendants’ waiver of their  right to counsel, the importance of defense team members in indigent  defense cases—issues indigent defense stakeholders identify as  impediments to effective representation—as well as other research  focused on important issues surrounding indigent defense.solicitation—which will provide up to $1 million for research projects—will  fund a rigorous, scientific study that will identify barriers defendants  commonly face in securing effective representation. DOJ officials stated  that they developed this solicitation after conducting a review of existing  indigent defense research, which they used to identify the areas of  research they believed to be most important. Given that public defenders  in our survey reported the need for assistance in conducting evaluations,  NIJ’s study could help provide these defenders with the information,  framework, and tools to conduct such evaluations, and identify factors  that may affect the provision of indigent defense services.
section_title: Conclusions
paragraphs: Identifying a crisis in the nation’s criminal defense system, DOJ has  stated its commitment to focusing on indigent defense issues and  developing and implementing solutions. Moreover, both DOJ and BIA  have undertaken efforts to assist state, local, and tribal indigent defense  providers in overcoming barriers to providing effective indigent defense  services. However, consistent with OJP’s commitment to identify and  address the most pressing challenges confronting the justice system and  BIA’s authority to support the development, enhancement, and continuing  operation of tribal justice systems, they could do more to meet the needs  of indigent defense providers. Specifically, by increasing awareness  among JAG, JABG, and JJDP grantees, as well as indigent defense  providers, that funding is available for indigent defense, DOJ could be in a  better position to ensure that eligible grantees are aware that they can  access federal funding to help address their needs. In addition, by  increasing awareness among recipients of Tribal Courts TPA distributions  that funding can be used for indigent defense, BIA could better help tribes  enhance all aspects of their criminal justice system.
DOJ collected data on the amount of funding allocated for indigent  defense for the Byrne Competitive and TCCLA grants when funding for  indigent defense was a priority, and has developed mechanisms to do so  in the JAG program, but does not consistently do so in the JABG and  TJADG programs, where indigent defense is also a priority. Since DOJ  seeks to focus on indigent defense issues and develop solutions, taking  steps to collect data on allocations for indigent defense would position  DOJ to better assess if it is meeting its commitment to indigent defense  and help inform future funding priorities.
section_title: Recommendations for Executive Action
paragraphs: To ensure that OJP is best positioned to identify and address critical  needs in the indigent defense community, determine whether it has met  its commitment to indigent defense, and improve accountability in grants  administration, we recommend that the Assistant Attorney General of  OJP take the following three actions:  take steps to increase JAG, JABG, and JJDP grantees’ awareness  that funding can be allocated for indigent defense;  inform indigent defense providers about grants for which they are  eligible to apply; and  take steps to collect data on allocations and spending for indigent  defense in the JABG and TJADG programs.
To ensure that the Office of Justice Services is best positioned to support  the development, enhancement, and continuing operation of tribal justice  systems, we recommend that the Director of the Bureau of Indian Affairs  take actions to increase awareness among recipients of Tribal Court TPA  distributions that funding can be allocated for indigent defense.
section_title: Agency and Third Party Comments and Our Evaluation
paragraphs: We provided a draft of this report for review and comment to DOJ and  DOI. In addition, we provided relevant sections of the report to The Bronx  Defenders and the Administrative Office of the U.S. Courts (AOUSC).  DOI did not provide official written comments to include in our report.  However, in an email received April 23, 2012, the DOI liaison stated that  DOI concurred with our recommendation. We received written comments  from DOJ, which are reproduced in full in appendix IX. In its written  comments, DOJ concurred with the recommendations in this report. DOJ,  The Bronx Defenders, and AOUSC also provided technical comments  which we incorporated throughout the report as appropriate.
DOJ identified several actions that OJP will take to implement the  recommendations related to increasing JAG, JABG, and JJDP grantees’  awareness that funding can be allocated for indigent defense and  informing indigent defense providers about grants for which they are  eligible to apply. These actions include updating its “Frequently Asked  Questions” document for grantees; communicating this information to  grantees through email, technical assistance websites, and during  national meetings; and working with national organizations, such as ABA  and NLADA, to disseminate information on available funding to indigent  defense providers through conferences, meetings, emails, newsletters,  and publications. Increasing grantee awareness that funding can be  allocated for indigent defense could help DOJ better ensure that it meets  its commitment to supporting indigent defense. OJP’s proposed steps, if  implemented across eligible grant programs, should address the intent of  our recommendations.
With regard to the recommendation that OJP take steps to collect data on  allocations and spending for indigent defense in the JABG and TJADG  programs, we originally included language in the recommendation that  described examples of actions OJP could take to collect such data.  Specifically, we stated that such actions could include increasing JABG  and TJADG applicants’ awareness of the indigent defense project  identifier, to ensure more consistent use of the identifiers and allow DOJ  to collect data on allocations of the grants to indigent defense, and  requiring JABG and TJADG grantees to select project identifiers. After  sending the draft report to DOJ for comment, officials from OJP and ATJ  stated that they plan to work together to determine internally the best way  to collect data on allocations and spending for indigent defense in the  JABG and TJADG programs, which could include the actions we  identified in the original recommendation or other measures. Thus, they  requested that we remove the language that described examples of how  OJP could collect this data. We agreed that DOJ was best positioned to  determine how to implement the recommendation and modified the  recommendation by removing the language that described such  examples to address the recommendation. OJP stated that, by  September 30, 2012, OJJDP will determine the mechanism by which data  on allocations and spending for indigent defense in the JABG and TJADG  programs can best be collected. Collecting such data would position DOJ  to better assess if it is meeting its commitment to indigent defense.
We are sending copies of this report to the appropriate congressional  committees. We are also sending copies to the Attorney General, the  Secretary of the Interior, and the Director of the AOUSC. In addition, this  report will be available at no charge on the GAO website at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-8777 or larencee@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. Key contributors to this report are listed in  appendix X.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: We addressed the following questions as a part of our review:  1.  What type of support, if any, have the Department of Justice (DOJ)  and Bureau of Indian Affairs (BIA) provided for state, local, and tribal  indigent defense?  2.  For fiscals years 2005 through 2010, to what extent was eligible DOJ  and BIA funding allocated and awarded for indigent defense, what  factors affected decisions to allocate and award funding for this  purpose, and what actions have DOJ and BIA taken, if any, to  address these factors?  3.  When fiscal year 2005 through 2010 federal funding was allocated or  awarded for indigent defense, how did it compare to the total  allocations or awards made, and how did recipients use the funding?  4.  To what extent does DOJ collect data on indigent defense funding  when the grant program specifies that funds be allocated or awarded  for this purpose or highlights it as a priority?  5.  When a grant program specifies that funds be spent for indigent  defense or highlights it as a priority, to what extent can DOJ assess  the impacts of this grant funding, and to what extent have there been  evaluations of indigent defense programs and has DOJ supported  these evaluation efforts ?
To determine what DOJ grant programs and BIA funding could be used to  support state, local, and tribal indigent defense from fiscal years 2005  through 2010, we reviewed the Catalog of Federal Domestic Assistance,  DOJ’s website, and BIA’s annual budget justifications. In addition, we  spoke with public defenders and state and local government offices in  selected states to determine whether there were additional grants they  had applied for or received related to indigent defense that we had not  already identified. We selected these states based on geographical  location, the extent to which state and local government offices had  received federal funding, and the structure of the state’s indigent defense  system. We also met with agency officials in DOJ’s Office of Justice  Programs (OJP), who are responsible for administering the programs,  and BIA’s Office of Justice Services, who provide support to tribal courts,  to discuss the federal funding programs in more detail. Once our  determinations were made, we sent OJP officials a list of funding  programs to be included in our review, and asked for confirmation of this  list. The DOJ grants included in our review were the Edward Byrne  Memorial Justice Assistance Grant (JAG) Program; the Juvenile  Accountability Block Grant (JABG); the Juvenile Justice and Delinquency  Prevention Title II (JJDP); John R. Justice Program; Byrne Competitive  Program; Capital Case Litigation Initiative; Wrongful Conviction Review  Program; Tribal Civil and Criminal Legal Assistance Program; Tribal  Courts Assistance Program; Juvenile Indigent Defense Clearinghouse  Grant; Tribal Juvenile Accountability Discretionary Grant; Juvenile Justice  and Mental Health Collaboration Grant; and Adult Drug Court  Discretionary Grant. The BIA funding included in our review was the  Tribal Courts tribal priority allocation (TPA) distributions. We obtained  records of all recipients of these grants from DOJ and by reviewing BIA’s  budget documentation. Further, we interviewed knowledgeable agency  officials about the source of the grant data and the controls in place to  maintain the integrity of the data and determined that the data were  sufficiently reliable for our purposes. In addition, to determine what other  assistance DOJ and BIA made available to support indigent defense, we  interviewed DOJ and BIA officials responsible for training and technical  assistance to identify assistance other than funding that the agencies  provide to support indigent defense.
To determine the extent to which state, local, and tribal governments  allocated federal funding for indigent defense, the factors that influenced  their decisions, and the amounts allocated, we conducted separate Web- based surveys of all recipients of fiscal year 2005 through 2010 DOJ  formula grants that could be allocated for indigent defense—the JAG,  JJDP, and JABG grants—and tribal governments that received BIA Tribal  Courts TPA distributions from fiscal years 2005 through 2010.develop the survey questionnaires, we reviewed existing literature about  the provision of indigent defense, and interviewed state JAG, JABG, and  JJDP recipients, local JAG recipients, and tribes. We designed draft  questionnaires in close collaboration with a GAO social science survey  specialist. We conducted pretests with five state and local JAG recipients,  three JABG recipients, three JJDP recipients, two tribal JAG recipients,  and two recipients of BIA Tribal Court TPA distributions to help further  refine our questions, develop new questions, and clarify any ambiguous  portions of the survey.
We developed and administered the web-based questionnaires  accessible through a secure server. We emailed each recipient a unique  identification number and password, and a link to the questionnaire for  their population. See table 4 for further details about the population,  response rates, and generalizabilty of these surveys.
Because all recipients of JABG and JJDP funding were included in our  survey, and our results are therefore not subject to sampling error, and  we received response rates of 82 and 89 percent, we consider our results  generalizable to the populations of JABG and JJDP recipients. While we  also included all eligible members of the target populations in our state  and local JAG, tribal JAG, and Tribal Courts TPA surveys, because of  their relatively low response rates and the possibility of other errors all  questionnaire surveys face, our results represent only respondents  participating in these surveys and should not be generalized to the  populations. Specifically, certain members of these populations may have  been more or less likely to respond to our survey and this may affect our  data. For instance, our data may overrepresent allocations for indigent  defense because recipients that allocated funding for indigent defense  may have been more likely to respond to our survey than recipients that  had never done so. In addition, on the JAG survey, recipients of larger  amounts of money and recipients of multiple years of funding were more  likely to respond, but recipients of funding awarded solely pursuant to  amounts appropriated through the American Recovery and Reinvestment  Act were less likely to respond. However, the responses provide insights  into the extent to which JAG and BIA Tribal Courts TPA funding has been  allocated for indigent defense.
The practical difficulties of conducting any survey may introduce errors in  estimates. For example, difficulties in interpreting a particular question,  sources of information available to respondents, or entering data into a  database or analyzing them can introduce unwanted variability into the  survey results. We took steps in developing the questionnaire, collecting  the data, and analyzing them to minimize these errors. In addition, as  indicated above, social science survey specialists designed the  questionnaire in collaboration with GAO staff that had subject matter  expertise. We then conducted pretests to check that (1) the questions  were clear and unambiguous, (2) terminology was used correctly, (3) the  questionnaire did not place an undue burden on respondents, (4) the  information could feasibly be obtained, and (5) the survey was  comprehensive and unbiased. We made multiple contact attempts with  nonrespondents during the survey by e-mail, and some nonrespondents  were also contacted by telephone. When we analyzed the data, an  independent analyst checked all computer programs. Since this was a  web-based survey, respondents entered their answers directly into the  electronic questionnaire, eliminating the need to key data into a database,  minimizing error. We assessed the reliability of funding allocation data  that was provided by including a series of questions pertaining to the  accuracy of reported data in our survey and reviewing the data for  obvious errors. Dollar amounts reported through our surveys, particularly  by JAG respondents, have limitations and should be treated as estimates.  For instance, respondents may have had difficulty identifying the precise  amount of funding allocated for indigent defense in the earlier years of our  time frame (fiscal years 2005 through 2010), may have been unable to  determine the exact amount of funding that was allocated for indigent  defense if grant funds were used for multiple purposes, or may not have  had sufficient information to provide total amounts allocated to indigent  defense because they had not yet fully allocated their grant funds. In  addition, our JAG data may overrepresent allocations to law enforcement  because it was the first category listed in our survey and respondents that  were unable to split their funding across purpose areas may have  reported allocating all funding to law enforcement.
To determine the extent to which DOJ awarded discretionary grants for  indigent defense, we obtained project descriptions for all discretionary  grants that could have been awarded for indigent defense in fiscal years  2005 through 2010 from DOJ. We then reviewed these descriptions to  determine the recipients of the grant services. In addition to indigent  defense providers, this included the following categories: civil defenders,  criminal defenders, prosecutors, law enforcement providers, court offices,  correctional agencies, crime victims, reentry service providers, juvenile  delinquency prevention organizations, appellate defenders, drug  treatment providers, community and public outreach providers, non- attorney staff, innocence projects, and universities. Many grants had  multiple recipients of grant services. In these instances, we classified the  grants to reflect all recipients; as a result, grants may be counted in more  than one category. For each grant program we determined the number of  grants used exclusively for indigent defense, the number of grants used  for indigent defense with another grant recipient category, and the  number and amount of grants that were not used for indigent defense.  Two analysts made these classifications in order to verify each other’s  work.
To determine what factors influenced public defenders’ decisions to apply  for funding, we conducted a web-based survey of public defenders. To  develop the survey questionnaire, we reviewed existing literature about  the provision of indigent defense, and interviewed stakeholder groups  knowledgeable about the provision of these services. We designed draft  questionnaires in close collaboration with a GAO social science survey  specialist. We conducted pretests with four public defenders to help  further refine our questions, develop new questions, and clarify any  ambiguous portions of the survey.
We drew our survey sample from 841 public defender offices identified  nationwide. To identify the population of public defender offices  nationwide, we started with the Census of Public Defender Offices, which  was conducted in 2007 by the Bureau of Justice Statistics (BJS). This  Census collected data from all state and county funded public defender  offices across the country. We further worked in partnership with the  National Legal Aid and Defender Association (NLADA) to update existing  contact information and identify additional offices that should be included.
We drew a stratified sample of 253 of the 841 public defenders  nationwide. From this population of 841 public defenders, we sampled  100 percent of: 22 state-level offices, 6 territories, 17 tribes, 52 public  defender offices in major metropolitan areas, and 71 secondary offices  not in major metropolitan areas. The remaining 85 public defenders were  drawn within strata defined by region. The six strata are shown in table 5.
We developed and administered the web-based questionnaire accessible  through a secure server, and emailed unique identification numbers and  passwords to the 253 public defenders beginning December 6, 2011. We  sent follow-up e-mail messages beginning December 13, 2011, to those  who had not yet responded. Then we contacted all remaining  nonrespondents by telephone, starting January 5, 2012. The  questionnaire was available online until February 29, 2012.
We received 118 responses from the sample of 253, for an unweighted  response rate of 47 percent. Because of this relatively low response rate,  our results represent only respondents participating in our survey and  should not be generalized to the population of public defenders; thus we  report results based only on the respondents and do not present  population estimates. However, the responses provide insights into the  factors that influence public defenders’ decisions to apply for federal  funding. We took steps similar to those in our grant recipient surveys  when developing the questionnaire, collecting the data, and analyzing  them to minimize errors.
To determine what efforts, if any, DOJ has taken to address factors  influencing recipients’ decisions to allocate funding for indigent defense,  we interviewed DOJ and BIA officials responsible for each type of  funding. We also reviewed DOJ’s guidance to recipients to determine the  extent to which DOJ communicated that funding could be used for  indigent defense programs. We compared this guidance against the grant  and BIA statutes, and DOJ’s stated commitment to support indigent  defense.
To determine the allocation amounts and uses of formula grants and  Tribal Courts TPA distributions that were allocated for indigent defense,  we asked a question pertaining to funding amounts in our state and local  JAG, JABG, JJDP, tribal JAG, and Tribal Courts TPA surveys described  above and also performed follow-up interviews with select grant recipients  to determine the purposes for which funds were used. We contacted all 6  JABG and 7 JJDP recipients that reported allocating any fiscal year 2005  through 2010 funding for indigent defense, all 16 state and local JAG  recipients that reported allocating fiscal year 2010 funding for indigent  defense, and 7 recipients of BIA Tribal Courts TPA distributions that  reported allocating any fiscal year 2005 through 2010 funding for indigent  defense and asked them to describe how they used grants funds that  were allocated for indigent defense. We conducted interviews with 5 of 6  JABG, 5 of 7 JJDP, 9 of 16 state and local JAG, and 7 of 20 recipients of  BIA Tribal Courts TPA distributions that reported allocating to indigent  defense.
To determine the allocation amounts and uses of discretionary grants  which were awarded for indigent defense, during our review of all project  descriptions of DOJ discretionary grants that could have been awarded  for indigent defense from fiscal years 2005 through 2010, in addition to  determining the recipient of the grant services, we also determined the  use for each grant. We identified the following possible uses: training,  technical assistance, personnel, planning and evaluation, technology  initiatives, equipment, case management, conflict counsel, outreach and  public education, facilities, codes and legal rules, and representation from  an outside source. For each grant, two analysts came to agreement on  the categorization. As with the recipients of grant services, many grants  had multiple uses. In these instances, we classified the grants to reflect  all their uses; as a result, grants may be counted more than one time in  our overall analysis. With this information we were able to provide the  amount and use for all discretionary grants that were used all or in part for  indigent defense.
To determine the extent to which DOJ collects data on whether recipients  allocate funds for indigent defense when such funding is required or  highlighted as a priority, we reviewed all grant solicitations to determine  whether DOJ required that funding be allocated or awarded for indigent  defense or identified indigent defense as a purpose area or priority. For  grants in which we found that it was, we spoke with DOJ officials about  why they chose to do so. In addition, through document requests and  interviews with DOJ officials, we asked the agency to provide information  that describes the extent to which they track how grantees have allocated  funding, including for indigent defense, and how they do or could do so.  We analyzed this information to ascertain the status of their efforts and  the mechanisms available to conduct such tracking.
As part of this analysis, we requested data from DOJ on its fiscal year  2011 JAG grantees because—beginning in fiscal year 2011—JAG  grantees were required to select up to five project identifiers to indicate  how their 2011 JAG funds would be used, and DOJ developed a project  identifier for indigent defense. We compared this data with our survey  results from JAG grantees to determine the extent to which grantees that  indicated in our survey that they are likely to allocate funding for indigent  defense also selected indigent defense as a project identifier in their fiscal  year 2011 grant application in order to assess the accuracy of the project  identifier data. We compared DOJ’s data collection efforts against our  prior work on implementing the Government Performance and Results  Act, which states that agencies should collect sufficiently complete,  accurate, and consistent data to measure performance and support  decision making at various organizational levels.
OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June  2003). towards attaining these goals.performance measures DOJ established or is establishing for all grant  programs in which indigent defense funding is required or a priority to  assess whether the measures focused on the intended result of the  program (were outcome-oriented). The analysts then met to discuss and  resolve any differences in the results of their analysis. In addition, we  spoke with DOJ officials about the feasibility of collecting performance  measures for grant programs.
Two analysts also independently reviewed  To determine the extent to which evaluations have been conducted of  indigent defense programs, and the extent to which DOJ has supported  these evaluation efforts, we asked public defender offices and agencies in  our survey whether an evaluation had been conducted of their office and  the challenges associated with conducting such an evaluation. We  reviewed the evaluations of the 9 respondents who reported they were  willing to share them, but did not assess the quality of the evaluations or  their results. In addition, we conducted a literature search of peer- reviewed journals using databases such as ProQuest, PolicyFile, and  LexisNexis. In December 2011, we also held a listening session at a  National Legal Aid and Defender Association conference where public  defenders described challenges to conducting evaluations, among other  topics. defense systems, we reviewed studies funded or conducted by DOJ and  interviewed DOJ officials about its efforts to evaluate indigent defense  systems.
Finally, to identify actions DOJ has taken to evaluate indigent  We conducted this performance audit from February 2011 to May 2012 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  analysis based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our analysis based on our audit  objectives.
The 17 public defender office or agency leaders who attended the listening session also  discussed characteristics of model public defender programs; factors that affect the ability  of public defenders to provide effective representation; and critical funding needs facing  public defender programs. We observed their discussion, recorded the information shared,  and reviewed the information to identify common themes.
section_title: Appendix II: Allocations and Uses of DOJ Grants That Required Indigent Defense Funding
paragraphs: As table 6 demonstrates, grantees of the four programs that we  determined require funding for indigent defense—the John R. Justice  Program, Capital Case Litigation Program, Wrongful Conviction Review  Program, and Juvenile Indigent Defense National Clearinghouse—have  allocated or used these grants in accordance with grant requirements for  indigent defense.
section_title: Appendix III: Percentage of Survey Respondents That Allocated Funding for Indigent Defense and Allocation Amounts
paragraphs: Figures 13, 14, and 15 show the percentages of Edward Byrne Memorial  Justice Assistance Grant (JAG); Juvenile Accountability Block Grant  (JABG); Juvenile Justice and Delinquency Prevention Title II (JJDP); and  Bureau of Indian Affairs (BIA) Tribal Courts Tribal Priority Allocation (TPA)  Distribution survey respondents who reported allocating funding for  indigent defense from fiscal year 2005 through 2010. As the figures  demonstrate, the percentage was highest among JAG State  Administering Agencies (SAA)—the state agencies that administer JAG  funds—in receipt of grants awarded pursuant to amounts appropriated  through the American Recovery and Reinvestment Act (ARRA). In  addition, the percentage of JJDP and JABG recipients that reported  allocating funding for indigent defense increased and decreased,  respectively, in fiscal year 2009. Further, the percentage of BIA tribal  courts survey respondents that reported allocating funding for indigent  defense has increased over time.
As figures 16, 17, and 18 illustrate, among survey respondents who  reported allocating funding for indigent defense, allocations for indigent  defense as a percentage of total awards reported by survey respondents  were generally small, but varied slightly across time. For instance, in the  JAG program, reported allocations as a percentage of total awards were  highest among localities and tribes in fiscal years 2009 and 2010. In  addition, reported allocations as a percentage of total awards are highest  in the JABG program, but have been decreasing over time. Further,  reported allocations as a percentage of total awards among BIA Tribal  Courts TPA recipients have been increasing over time. However, these  data, particularly the allocation amounts, have limitations and should be  treated as estimates. For instance, respondents may have had difficulty  identifying the precise amount of funding allocated for indigent defense in  the earlier years of our time frame (fiscal years 2005 through 2010), been  unable to determine the exact amount of funding that was allocated for  indigent defense if grant funds were used for multiple purposes, or not  have had sufficient information to provide total amounts allocated to  indigent defense because they had not yet fully allocated their grant  funds. In addition, our JAG data may overrepresent allocations to law  enforcement because it was the first category listed in our survey and  respondents that were unable to split their funding across purpose areas  may have reported allocating all funding to law enforcement.
section_title: Appendix IV: Additional Details on Number of Indigent Defense Discretionary Awards and Award Amounts
paragraphs: Table 7 shows, by DOJ discretionary grant, the number of grants  awarded in whole or in part for indigent defense, this number as a  percentage of total awards, total allocations for indigent defense, and  these allocations as a percentage of total awards. These data, particularly  the award amounts, have limitations. For instance, we reviewed project  descriptions that were based on grantees’ applications; however, the  descriptions did not identify the amount of funding specifically planned for  indigent defense. Therefore, the amounts reported represent the  maximum possible awards for indigent defense.
Figures 19 and 20 show the percentage of grants awarded in whole or in  part for indigent defense as well as maximum possible awards for  indigent defense as a percentage of total grant awards from 2005 through  2010. As figure 19 demonstrates, the percentage of grants awarded for  indigent defense was highest for fiscal year 2010 TCCLA grants, and in  the fiscal year 2009 Byrne Competitive grant program, when indigent  defense was part of a national initiative.
In addition, as figure 20 illustrates, awards to indigent defense as a  percentage of total awards were highest in the Tribal Court Assistance  Program, although they were decreasing over time.
section_title: Appendix V: JAG Survey Respondents’ Allocations across Purpose Areas and for Indigent Defense, by Fiscal Year
paragraphs: Figures 21 through 34 display the percentages of their total awards that  Edward Byrne Memorial Justice Assistance Grant (JAG) State  Administering Agencies (SAA)—state agencies that administer JAG  funds—and local and tribal JAG recipients that responded to our survey  reported allocating for all seven JAG purpose areas by fiscal year. The  figures also include the percentage of their total awards that these  respondents reported allocating for indigent defense. However, our data  have limitations and should be treated as estimates. Specifically,  respondents may have had difficulty identifying the precise amount of  funding allocated for indigent defense in the earlier years of our timeframe  (fiscal years 2005 through 2010, including funding awarded pursuant to  amounts appropriated through the American Recovery and Reinvestment  Act (ARRA)), been unable to determine the exact amount of funding that  was allocated for each purpose area if grant funds were used for multiple  purposes, or not have had sufficient information to provide total amounts  allocated to each purpose area because they had not yet fully allocated  their grant funds. In addition, the data may overrepresent allocations to  law enforcement because it was the first category listed in our survey and  respondents that were unable to split their funding across purpose areas  may have reported allocating all funding to law enforcement. Finally, our  data may overrepresent allocations for indigent defense because JAG  recipients that allocated funding to indigent defense may have been more  likely to respond to our survey than recipients that had never done so.
As figures 21 through 27 illustrate, SAAs who responded to our survey  reported allocating the largest proportion of funding to the law  enforcement purpose area.
As figure 28 through 34 demonstrate, localities and tribes that received  JAG funding and responded to our survey reported allocating the largest  proportion of their funding to the law enforcement purpose area.
section_title: Appendix VI: Analysis of Indigent Defense- Related Performance Measures for Department of Justice Grant Programs
paragraphs: For all grant programs in which funding for indigent defense is required or  prioritized—the John R. Justice Grant Program; the Capital Case  Litigation Initiative; the Wrongful Conviction Review Program; the Juvenile  Indigent Defense National Clearinghouse; the Edward Byrne Memorial  Justice Assistance Grant (JAG); the Juvenile Accountability Block Grant  (JABG); the Byrne Competitive Grant Program; the Tribal Juvenile  Accountability Discretionary Grant Program; and the Tribal Civil and  Criminal Legal Assistance Grant Program (TCCLA)—the Department of  Justice (DOJ) has developed or is developing indigent defense-related  performance measures. Table 8 identifies these measures and whether  the measures are output measures, or those that describe the level of  activity that will be provided over a period of time; outcome measures, or  those that describe the intended result of carrying out the program; input  measures, or those that describe the resources used to produce outputs  and outcomes; or process measures, or those that indicate how well a  procedure, process, or operation is working.
section_title: Appendix VII: Select Measures, Findings, and Recommendations from Public Defender Office and Agency Evaluations and Reports
paragraphs: Of the 118 respondents to our survey of public defender offices or  agencies, 9 provided us with, or directed us to, copies of evaluations of or  reports on their office or agency. Table 9 shows select measures used in  these evaluations or reports, and their findings and recommendations.
section_title: Appendix VIII: Possible Data Elements for Evaluating Public Defender Offices, Extent to Which Respondents Collect Related Data, and Data Challenges and Limitations
paragraphs: Respondents to our public defender office survey reported collecting data  that could be used to conduct an evaluation, but also reported challenges  to collecting this data. Table 10 shows the percentage of survey  respondents collecting each data element, and the associated  challenges.
section_title: Appendix IX: Comments from the Department of Justice
section_title: Appendix X: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Kristy N. Brown, Assistant  Director; Jill Verret, Analyst-in-Charge; Heather Hampton; Christine  Hanson; and Alicia Loucks made significant contributions to this report.  Other key contributors were Michele Fejfar, Cynthia Grant, Thomas  Lombardi, Lara Miklozek, Karen O’Connor; Carl Ramirez, Christine San,  Jerome Sandau, and Janet Temko.