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

Letter

Background

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.

DOJ and BIA Make Funding, Training, and Technical Assistance Available to Support Indigent Defense

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.

Unless Required, Few Recipients Allocated or Planned to Use Any Federal Funding for Indigent Defense, in Part Due to Competing Priorities

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.

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

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).

DOJ Could More Consistently Collect Data on the Amount of Funding Allocated for Indigent Defense When Programs Identify It as a Priority

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.

DOJ Assesses the Impact of Indigent Defense Grant Funding and Has Mechanisms to Help Indigent Defense Providers Evaluate Services

DOJ Has Measures to Assess the Impact of Indigent Defense-Related Grant Funding

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.

Indigent Defense Providers Generally Reported That Evaluations of Their Services Have Not Been Conducted; DOJ Has Mechanisms to Support Such Evaluations

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.

Conclusions

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.

Recommendations for Executive Action

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.

Agency and Third Party Comments and Our Evaluation

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.

Appendix I: Objectives, Scope, and Methodology

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.

Appendix II: Allocations and Uses of DOJ Grants That Required Indigent Defense Funding

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.

Appendix III: Percentage of Survey Respondents That Allocated Funding for Indigent Defense and Allocation Amounts

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.

Appendix IV: Additional Details on Number of Indigent Defense Discretionary Awards and Award Amounts

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.

Appendix V: JAG Survey Respondents’ Allocations across Purpose Areas and for Indigent Defense, by Fiscal Year

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.

Appendix VI: Analysis of Indigent Defense- Related Performance Measures for Department of Justice Grant Programs

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.

Appendix VII: Select Measures, Findings, and Recommendations from Public Defender Office and Agency Evaluations and Reports

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.

Appendix VIII: Possible Data Elements for Evaluating Public Defender Offices, Extent to Which Respondents Collect Related Data, and Data Challenges and Limitations

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.

Appendix IX: Comments from the Department of Justice

Appendix X: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.