Skip navigation

Gao Report on Indigent Defense Funding 2012

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
GAO
May 2012

United States Government Accountability Office

Report to Congressional Requesters

INDIGENT DEFENSE
DOJ Could Increase
Awareness of Eligible
Funding and Better
Determine the Extent
to Which Funds Help
Support This Purpose

GAO-12-569

May 2012

INDIGENT DEFENSE

Highlights of GAO-12-569, a report to
congressional requesters

DOJ Could Increase Awareness of Eligible Funding
and Better Determine the Extent to Which Funds
Help Support This Purpose

Why GAO Did This Study

What GAO Found

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.

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.

What GAO Recommends
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.

View GAO-12-569. For more information,
contact Eileen R. Larence at (202) 512-8777
or larencee@gao.gov.

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.
United States Government Accountability Office

Contents

Letter

1
Background
DOJ and BIA Make Funding, Training, and Technical Assistance
Available to Support Indigent Defense
Unless Required, Few Recipients Allocated or Planned to Use Any
Federal Funding for Indigent Defense, in Part Due to Competing
Priorities
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
DOJ Could More Consistently Collect Data on the Amount of
Funding Allocated for Indigent Defense When Programs Identify
It as a Priority
DOJ Assesses the Impact of Indigent Defense Grant Funding and
Has Mechanisms to Help Indigent Defense Providers Evaluate
Services
Conclusions
Recommendations for Executive Action
Agency and Third Party Comments and Our Evaluation

6
10
17
31
36
39
46
47
47

Appendix I

Objectives, Scope, and Methodology

51

Appendix II

Allocations and Uses of DOJ Grants That Required Indigent Defense
Funding

61

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

62

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

69

Appendix III

Appendix IV

Page i

GAO-12-569 Indigent Defense

Appendix V

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

72

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

87

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

94

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

101

Appendix IX

Comments from the Department of Justice

104

Appendix X

GAO Contact and Staff Acknowledgments

109

Appendix VI

Appendix VII

Appendix VIII

Tables
Table 1: DOJ Grant Programs that Require Funding to Be Allocated
for Indigent Defense
Table 2: DOJ Grant Programs for which Allocating Funding for
Indigent Defense Is a Priority or Stated Purpose
Table 3: DOJ Grant Programs for which Allocating Funding for
Indigent Defense is Allowed, but Not Required or a Priority
Table 4: Survey Distribution, Populations, Respondents and Rates,
and Generalizability
Table 5: Public Defender Offices by Stratum and Population, Cases
Selected, and Sample Size
Table 6: Number and Amount of Awards for Indigent Defense for
DOJ Grant Programs That Required Funding for Indigent
Defense

Page ii

11
13
14
54
57
61

GAO-12-569 Indigent Defense

Table 7: Awards and Allocations in Whole or in Part for Indigent
Defense, by Discretionary Grant that Did Not Require
Spending for this Purpose
Table 8: Indigent Defense-Related Performance Measures and Type
of Measure for DOJ Grant Programs
Table 9: Summary of Select Measures, Findings, and
Recommendations from Public Defender Evaluations and
Reports
Table 10: Survey Respondents Collecting Data Elements and
Associated Challenges

69
88
94
101

Figures
Figure 1: Percentage of Survey Respondents that Received DOJ
Formula Grants or BIA Tribal Courts TPA Funds and
Reported Allocating These Funds for Indigent Defense
Figure 2: Percentage of Discretionary Grants That Were Awarded
Fully or in Part for Indigent Defense during Fiscal Years
2005 through 2010
Figure 3: Percentage of JAG, JJDP, JABG, and Tribal Courts TPA
Survey Respondents Reporting Reasons That Were
Extremely or Very Important to Their Decisions Not to
Allocate Funding for Indigent Defense
Figure 4: Percentage of Public Defender Survey Respondents
Reporting Reasons That Were Extremely or Very
Important for Why They Did Not Apply for Grant Funding
(N=103)
Figure 5: Percentage of Funding That JAG SAA Respondents
Reported Allocating to Each Purpose Area, Including
Indigent Defense, during Fiscal Years 2005 through 2010
Figure 6: Percentage of Funding That JAG Local and Tribal
Respondents Reported Allocating to Each Purpose Area,
As Well As Indigent Defense, during Fiscal Years 2005
through 2010
Figure 7: Criminal Justice Areas Awarded Byrne Competitive
Grants during Fiscal Years 2007 through 2010 (N=287)
Figure 8: Survey Respondents Who Reported They Were Aware
that Funding Could Be Used for Indigent Defense
Figure 9: Allocations for Indigent Defense as a Percentage of Total
Awards among Those Who Reported Allocating Funding
for Indigent Defense, Fiscal Years 2005 through 2010

Page iii

18
20

21

22
24

25
26
29
32

GAO-12-569 Indigent Defense

Figure 10: Amounts Awarded Fully or In Part for Indigent Defense,
as a Percentage of Total Amounts Awarded for Selected
Discretionary Grants, during Fiscal Years 2005 through
2010
Figure 11: Reported Uses of JABG and JJDP Grants Allocated for
Indigent Defense
Figure 12: Uses of Discretionary Grants Awarded for Indigent
Defense
Figure 13: Percentage of JAG State, Local, and Tribal Survey
Respondents That Reported Allocating Funding for
Indigent Defense, by Fiscal Year
Figure 14: Percentage of JJDP and JABG Survey Respondents That
Reported Allocating Funding for Indigent Defense, by
Fiscal Year
Figure 15: Percentage of BIA Tribal Courts TPA Funding Survey
Respondents That Reported Allocating Funding for
Indigent Defense, by Fiscal Year
Figure 16: Reported Allocations as a Percentage of Total Award, by
Fiscal Year, among JAG Respondents Who Reported
Allocating Funding for Indigent Defense
Figure 17: Reported Allocations as a Percentage of Total Award, by
Fiscal Year, among JABG and JJDP Respondents Who
Reported Allocating Funding for Indigent Defense
Figure 18: Reported Allocations as a Percentage of Total Award, by
Fiscal Year, among BIA Tribal Courts TPA Respondents
Who Reported Allocating Funding for Indigent Defense
Figure 19: Percentage of Grants Awarded in Whole or in Part for
Indigent Defense; Fiscal Years 2005 through 2010
Figure 20: Indigent Defense Awards, as a Maximum Possible
Percentage of Total Awards; Fiscal Years 2005 through
2010
Figure 21: SAAs’ Reported Allocations across JAG Purpose Areas
and for Indigent Defense as a Percentage of Total Awards,
Fiscal Year 2005
Figure 22: SAAs’ Reported Allocations across JAG Purpose Areas
and for Indigent Defense as a Percentage of Total Awards,
Fiscal Year 2006
Figure 23: SAAs’ Reported Allocations across JAG Purpose Areas
and for Indigent Defense as a Percentage of Total Awards,
Fiscal Year 2007

Page iv

33
34
35
63
64
65
66
67
68
70
71
73
74
75

GAO-12-569 Indigent Defense

Figure 24: SAAs’ Reported Allocations across JAG Purpose Areas
and for Indigent Defense as a Percentage of Total Awards,
Fiscal Year 2008
Figure 25: SAAs’ Reported Allocations across JAG Purpose Areas
and for Indigent Defense as a Percentage of Total Awards,
Fiscal Year 2009
Figure 26: SAAs’ Reported Allocations across JAG Purpose Areas
and for Indigent Defense as a Percentage of Total Awards,
ARRA
Figure 27: SAAs’ Reported Allocations across JAG Purpose Areas
and for Indigent Defense as a Percentage of Total Awards,
Fiscal Year 2010
Figure 28: Local and Tribal JAG Recipients’ Reported Allocations
across JAG Purpose Areas and for Indigent Defense as a
Percentage of Total Awards, Fiscal Year 2005
Figure 29: Local and Tribal JAG Recipients’ Reported Allocations
across JAG Purpose Areas and for Indigent Defense as a
Percentage of Total Awards, Fiscal Year 2006
Figure 30: Local and Tribal JAG Recipients’ Reported Allocations
across JAG Purpose Areas and for Indigent Defense as a
Percentage of Total Awards, Fiscal Year 2007
Figure 31: Local and Tribal JAG Recipients’ Reported Allocations
across JAG Purpose Areas and for Indigent Defense as a
Percentage of Total Awards, Fiscal Year 2008
Figure 32: Local and Tribal JAG Recipients’ Reported Allocations
across JAG Purpose Areas and for Indigent Defense as a
Percentage of Total Awards, Fiscal Year 2009
Figure 33: Local and Tribal JAG Recipients’ Reported Allocations
across JAG Purpose Areas and for Indigent Defense as a
Percentage of Total Awards, ARRA
Figure 34: Local and Tribal JAG Recipients’ Reported Allocations
across JAG Purpose Areas and for Indigent Defense as a
Percentage of Total Awards, Fiscal Year 2010

Page v

76
77
78
79
80
81
82
83
84
85
86

GAO-12-569 Indigent Defense

Abbreviations
ABA
AOUSC
ARRA
ATJ
BIA
BJA
BJS
CCLI
DOI
DOJ
ICRA
JABG
JAG
JIDNC
JJDP
JRJ
NIJ
NTTAC
OJJDP
OMB
OJP
SAA
TCCLA
TJADG
TPA
WCR

American Bar Association
Administrative Office of the U.S. Courts
American Recovery and Reinvestment Act
Access to Justice Initiative
Bureau of Indian Affairs
Bureau of Justice Assistance
Bureau of Justice Statistics
Capital Case Litigation Initiative
Department of the Interior
Department of Justice
Indian Civil Rights Act
Juvenile Accountability Block Grant
Edward Byrne Memorial Justice Assistance Grant
Juvenile Indigent Defense National Clearinghouse
Juvenile Justice and Delinquency Prevention Grant Title II
John R. Justice Program
National Institute of Justice
National Training and Technical Assistance Center
Office of Juvenile Justice and Delinquency Prevention
Office of Management and Budget
Office of Justice Programs
state administering agency
Tribal Civil and Criminal Legal Assistance
Tribal Juvenile Accountability Discretionary Grants
Program
Tribal Priority Allocations
Wrongful Conviction Review Program

This is a work of the U.S. government and is not subject to copyright protection in the
United States. The published product may be reproduced and distributed in its entirety
without further permission from GAO. However, because this work may contain
copyrighted images or other material, permission from the copyright holder may be
necessary if you wish to reproduce this material separately.

Page vi

GAO-12-569 Indigent Defense

United States Government Accountability Office
Washington, DC 20548

May 9, 2012
Congressional Requesters
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. 1 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.
States, localities, and, in some cases, tribes fund indigent defense
services, and the federal government—through the Department of Justice
(DOJ) and the Department of the Interior’s (DOI) Bureau of Indian Affairs
(BIA), for tribes—also provides funding that can be used to support
indigent defense services. 2 However, in this country’s current fiscal crisis,
several states have reported that when determining how to allocate
scarce budget resources, they have reduced or eliminated state funding
for state and local indigent defense services. Further, although tribes—

1

See Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Sixth Amendment’s
effective assistance of counsel provision is a fundamental and essential right made
obligatory upon states by virtue of the Fourteenth Amendment’s due process of law
clause). Pursuant to the Sixth Amendment’s right to effective assistance of counsel
provision, a penalty of imprisonment may not be imposed upon any defendant, indigent or
otherwise, absent representation by counsel or a knowing and intelligent waiver of
counsel.

2

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.

Page 1

GAO-12-569 Indigent Defense

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. 3
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,

3
See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (recognizing that
although Indian tribes no longer possess the full attributes of sovereignty, they remain a
separate people, with the power of regulating their internal and social relations, and that
as separate sovereigns, tribes have historically been regarded as unconstrained by those
constitutional provisions framed specifically as limitations on federal or state authority)
(internal citations and quotations omitted). See also 25 U.S.C. § 1302(2) (defining an
Indian tribe’s power of self-government).

Page 2

GAO-12-569 Indigent Defense

and tribal grant and funding programs. 4 We obtained records of all
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.
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—
the Edward Byrne Memorial Justice Assistance Grant (JAG), 5 Juvenile
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)
distributions from fiscal years 2005 through 2010. 6 Forty-six percent of
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

4

We selected fiscal years 2005 through 2010 because you requested that we identify
federal funding that was used for indigent defense during this time frame. The Catalog of
Federal Domestic Assistance is a government-wide compendium of federal programs,
projects, services, and activities that provide assistance or benefits to the American public.
It contains financial and nonfinancial assistance programs administered by departments
and establishments of the federal government.

5
Amounts appropriated through the American Recovery and Reinvestment Act of 2009
(ARRA) are also included in our review. See Pub. L. No. 111-5, 123 Stat. 115, 130 (2009).
6
An electronic supplement to this report—GAO-12-661SP (available June 2012)—
provides survey results. Formula grants are funding programs for which the primary
grantees do not compete, although they must submit an application and meet other
specified requirements. These grants are usually administered and managed by State
Administering Agencies (SAA), and the amount of the grant awards are calculated by a
formula most often governed or established by statute, which may consider factors such
as population or crime data. We provide further descriptions of these grants later in this
report. In addition, we identified BIA funding to Courts of Indian Offenses (referred to as
“CFR courts”) that could be used for indigent defense. We did not include CFR courts in
our survey of tribal courts because CFR courts constitute direct services administered by
BIA officials. However, according to BIA officials, every CFR court has a law-trained public
defender. Also, based on discussions with BIA officials, we did not include tribal courts in
BIA’s Alaska region.

Page 3

GAO-12-569 Indigent Defense

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. 7 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. 8 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. 9
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. 10 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.

7
We surveyed tribal JAG recipients separately from state and local JAG recipients.
However, we combined all JAG responses for the purposes of this report. See appendix I
for additional details.
8

Because we included all recipients in our survey, our results are not subject to sampling
error.
9

See appendix I for additional details on the number of number of respondents we
followed up with and how they were selected.

10

Discretionary grants are awarded directly to eligible recipients, most often on a
competitive basis.

Page 4

GAO-12-569 Indigent Defense

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 11 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. 12 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

11

OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June
2003).
12

GAO, Executive Guide: Effectively Implementing the Government Performance and
Results Act, GAO/GGD-96-118, (Washington, D.C.: June 1996).

Page 5

GAO-12-569 Indigent Defense

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. 13 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.

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

13
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.

Page 6

GAO-12-569 Indigent Defense

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. 14 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. 15 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. 16 For example, ICRA extends the
protections of free speech, free exercise of religion, and due process and
equal protection under tribal laws. 17 Among other protections afforded

14

State-based public defender offices functioned entirely under the direction of a central
office that funded and administered all public defender offices in the state. BJS, State
Public Defender Programs, 2007 (Washington, D.C.: September 2010). Similarly, the
District of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands,
and the US Virgin Islands have also established centralized indigent defense agencies.
Maine funds 100 percent of indigent defense services, which are provided by assigned
counsel, but does not have city, county or state public defender offices.

15

See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (recognizing that
although Indian tribes no longer possess the full attributes of sovereignty, they remain a
separate people, with the power of regulating their internal and social relations, and that
as separate sovereigns, tribes have historically been regarded as unconstrained by those
constitutional provisions framed specifically as limitations on federal or state authority)
(internal citations and quotations omitted). See also 25 U.S.C. § 1301(2) (defining an
Indian tribe’s power of self-government).
16
See Pub. L. No. 90-284, tit. II, 82 Stat. 73, 77 (1968) (codified as amended 25 U.S.C. §§
1301-41).
17

See 25 U.S.C. § 1302(a)(1), (8).

Page 7

GAO-12-569 Indigent Defense

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. 18
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

18

See 25 U.S.C. § 1302(a)(6), (c)(1)-(2). The Tribal Law and Order Act of 2010 (TLOA),
Pub. L. No. 111-211, tit. II, 124 Stat. 2258, 2261, amended ICRA by authorizing tribal
courts to imprison convicted offenders for up to 3 years if the defendant has been
previously convicted of the same or a comparable offense by any jurisdiction in the United
States (federal, state, or tribal) or if the defendant is being prosecuted for an offense
comparable to an offense that, in any U.S. or state jurisdiction, would be punishable by
more than 1 year of imprisonment if prosecuted in state or federal court. See § 1302(b). In
addition, the maximum term of imprisonment that may be imposed in a criminal
proceeding (i.e., where a defendant is charged with multiple offenses) is 9 years. See §
1302(a)(7)(D). A tribe may not, however, impose a term of imprisonment in excess of one
year unless it affords the defendant certain rights enumerated in the statute, including the
right to have counsel provided at the tribe’s expense. See § 1302(c).

Page 8

GAO-12-569 Indigent Defense

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. 19

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-

19

Other types of funding include congressionally directed awards (also referred to as
earmarks), cooperative agreements, and payment programs.

Page 9

GAO-12-569 Indigent Defense

recognized tribes. 20 To that end, BIA’s Office of Justice Services supports
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. 21 For instance, one survey
respondent explained that their office’s best attorneys leave to pursue
positions offering higher compensation.
DOJ makes funding available through formula and discretionary grants
that could be used for indigent defense. Specifically, we identified 13

20
Through the Indian Self-Determination and Education Assistance Act of 1975, Pub. L.
No. 93-638, 88 Stat. 2203, as amended, the federal government established a policy of
Indian self-determination whereby tribes, with the support and assistance of the federal
government, would be afforded an “effective and meaningful” role in planning, conducting,
and administering programs and services previously administered by federal entities. See
25 U.S.C. § 450a. Tribes generally obtain funding to assume these functions pursuant to
self-determination contracts or self-governance compacts negotiated and entered into with
BIA. See §§ 450h, 458cc. Self-governance compacts differ from self-determination
contracts in that such compacts afford tribes more flexibility in how the agreed upon
funding may be utilized.
21

Our survey of public defender offices or agencies included a sample of 253 of the 841
offices. Because of the relatively low response rate, responses should not be generalized
to all public defender offices or agencies. See appendix I for additional details on the
survey. The total respondents differ by question because not all respondents provided
answers to all questions.

Page 10

GAO-12-569 Indigent Defense

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.
Table 1: DOJ Grant Programs that Require Funding to Be Allocated for Indigent Defense
Appropriated
amounts, fiscal
years 2005-2010

Name of grant program

Purpose

Type

John R. Justice

Provides loan repayment assistance for local, state, and
federal public defenders and state and local prosecutors.
Requires funding be split between defense and prosecution

Formula

2010: $10 million

Capital Case Litigation
Initiative

Provides training on death penalty issues to improve legal
representation to indigent defendants and enhance the
capability of prosecutors to represent the public.
Since fiscal year 2009 requires funding in one grant category
be split between defense and prosecution

Discretionary

2007: $1 million
2008: $2.5 million
2009: $2.5 million
2010: $2.5 million

Wrongful Conviction
Review

Helps ensure high-quality representation for potentially
wrongfully-convicted defendants in cases of post-conviction
claims of innocence.

Discretionary

2009: $3 million
2010: $3 million

Juvenile Indigent Defense
National Clearinghouse

Supports the improvement of juvenile indigent defense.

Discretionary

2010: $500,000

a

Source: GAO analysis of DOJ grant documents and data.

Note: DOJ did not receive appropriations for JRJ grants in fiscal years 2005 through 2009, CCLI
grants in fiscal years 2005 and 2006, WCR grants in fiscal years 2005 through 2008, and JIDNC
grants in fiscal years 2005 through 2009.
a

DOJ uses a formula to allocate JRJ, but the statute establishing JRJ neither establishes a formula
nor requires that a formula be followed in administering the grant.

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

Page 11

GAO-12-569 Indigent Defense

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. 22 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.

22
Hiring court-appointed defenders is an authorized use encompassed by one of the JABG
program’s and TJADG program’s purpose areas, which are established in statute, not by
DOJ.

Page 12

GAO-12-569 Indigent Defense

Table 2: DOJ Grant Programs for which Allocating Funding for Indigent Defense Is a Priority or Stated Purpose
Appropriated amounts,
fiscal years 2005-2010

Name of grant program

Purpose

Type

Justice Assistance Grant

Is the leading source of federal justice funding to state,
local, and tribal governments to support purpose areas
including law enforcement; prosecution and courts;
prevention and education; corrections and community
corrections; drug treatment and enforcement; planning,
evaluation, and technology improvements; and crime
victim and witness initiatives.
Indigent defense has been identified as a priority in the
grant solicitation since fiscal year 2010.

Formula

2005: $634 million
2006: $416.4 million
2007: $525.2 million
2008: $170.4 million
2009: $546 million
ARRA: $2 billion
2010: $519 million

Juvenile Accountability
Block Grant

Supports states and units of local government in their
efforts to strengthen their juvenile justice systems.
One purpose area includes hiring court-appointed
defenders.

Formula

2005: $55 million
2006: $50 million
2007: $49.4 million
2008: $51.7 million
2009: $55 million
2010: $55 million

Tribal Juvenile
Accountability
Discretionary Grant

Provides funds to federally recognized tribes to combat
delinquency and improve the quality of life in American
Indian/Alaska Native communities.
One purpose area includes hiring court-appointed
defenders.

Discretionary

2005: $1 million
2006: $1 million
2007: $1 million
2008: $1 million
2009: $1.1million
2010: $1.1 million

Byrne Competitive

Helps improve the functioning of the criminal justice
system, prevent or combat juvenile delinquency, and
assist victims of crime (other than compensation) within
specific identified areas.
Indigent defense was prioritized as a national initiative in
fiscal year 2009.

Discretionary

2007: $0
2008: $16 million
2009: $30 million
2010: $40 million

Tribal Civil and Criminal
Legal Assistance

Provides funding to nonprofits and organizations for
Discretionary
quality legal assistance targeting members of Indian tribes
and tribal justice systems, pursuant to the federal poverty
guidelines. The program also provides quality technical
assistance to support development and enhancement of
tribal justice systems.
Indigent defense is one grant category in the program.

2010: $3 million

Source: GAO analysis of DOJ grant documents and data.

Note: Allocating funding to indigent defense was not a requirement for any of these grant programs.
DOJ did not receive appropriations for Byrne Competitive grants in fiscal years 2005 and 2006, and
for TCCLA grants in fiscal years 2005 through 2009. According to DOJ, it awarded competitive grants
for national initiatives in fiscal year 2007 using funds that had been appropriated for Byrne
Discretionary grants (Byrne Congressional Earmarks) for which no specific earmark had been
specified.

Page 13

GAO-12-569 Indigent Defense

Table 3: DOJ Grant Programs for which Allocating Funding for Indigent Defense is Allowed, but Not Required or a Priority
Type

Appropriated amounts,
fiscal years 2005-2010

Name of grant program

Purpose

Juvenile Justice and
Delinquency Prevention
Title II

Supports state and local efforts in planning, establishing, Formula
operating, coordinating, and evaluating projects for the
development of more effective education, training,
research, prevention, diversion, treatment, and
rehabilitation programs in the area of juvenile delinquency,
as well as programs to improve the juvenile justice
system.

2005:$84 million
2006:$80 million
2007:$79 million
2008:$74.3 million
2009: $75 million
2010: $75 million

Tribal Court Assistance
Program

Helps develop and enhance the operation of tribal justice
systems and provides funding for training and technical
assistance to tribal court and justice system staff.

Discretionary

2005: $8 million
2006: $8 million
2007: $8 million
2008: $8.6 million
2009: $9 million
2010: $25 million

Justice and Mental Health
Collaboration

Facilitates collaboration among criminal justice and mental Discretionary
health treatment systems to increase access to services.

2007: $5 million
2008: $6.5 million
2009: $10 million
2010: $12 million

Adult Drug Court
Discretionary

Expands the drug court capacity at the state, local, and
tribal levels.

Discretionary

2005: $40 million
2006: $ 10 million
2007: $10 million
2008: $15.2 million
2009: $40 million
2010: $45 million

Source: GAO analysis of DOJ grant documents and data.

Note: DOJ did not receive appropriations for the Justice and Mental Health Collaboration Grant
Program in fiscal years 2005 and 2006.

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. 23 Through
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

23

In addition, BIA provides direct services to tribes that do not operate certain programs
themselves, such as tribes that rely upon CFR courts.

Page 14

GAO-12-569 Indigent Defense

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. 24 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. 25 For instance, BJA’s National Training and Technical
Assistance Center (NTTAC) accepts requests for and provides training
and technical assistance to state, local, and tribal criminal justice

24

American Bar Association, ABA Ten Principles of a Public Defense Delivery System.
(Chicago, Ill.: February 2002).

25

The AOUSC serves the federal judiciary in carrying out its constitutional mission to
provide equal justice under law through a wide range of administrative, legal, financial,
management, program, and information technology services to the federal courts.
According to AOUSC officials, funding for indigent defense providers is limited to federal
defender organizations, attorneys appointed to represent defendants financially unable to
retain counsel in federal criminal proceedings (see 18 U.S.C. § 3006A), and expert service
providers. Similarly, all training and technical assistance is directed to persons providing
representation in federal criminal and related matters.

Page 15

GAO-12-569 Indigent Defense

stakeholders. 26 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. 27 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. 28 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.

26

NTTAC offers training and technical assistance services in the following criminal justice
areas: adjudication (includes indigent defense), corrections, counter-terrorism, crime
prevention, information sharing, law enforcement, mental health, and substance abuse.

27

The focus group, entitled National Indigent Defense Reform: The Solution is
Multifaceted, produced a preliminary report suggesting DOJ endorse the following five
core principles to demonstrably improve indigent defense reform: reclassify criminal
offenses to reduce pressure on public defenders; support programs that ensure counsel is
present for a criminal defendant’s first appearance; protect the sixth Amendment right to
“effective” assistance of counsel by taking actions to support the right to counsel at the
state and local level; ensure the defense bar is consulted prior to adoption of new law
enforcement strategies, which could impact defender caseloads; and better utilize the
resources of the private bar.
28
The U.S. Attorneys are the chief federal law enforcement officers in their districts,
responsible for federal criminal prosecutions and civil cases involving the United States
Government.

Page 16

GAO-12-569 Indigent Defense

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. 29
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. 30 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. 31 (See appendix III for additional
information on the percentages of respondents who reported allocating
nondiscretionary funding for indigent defense.)

29

The dollar figures are in current dollars not adjusted for inflation. Adjusting for inflation
does not affect the percentages.
30

DOJ did not receive appropriations for the Capital Case Litigation Initiative in fiscal years
2005 and 2006. Eighteen of the 19 grantees who used funding to provide training to
defenders also provided training to nondefenders, such as prosecutors.
31
60 percent of JAG funding awarded to states is awarded directly to a SAA in each state,
and each SAA must in turn allocate a formula-based share of these funds to local entities,
for which SAAs may require that local entities apply. BJA awards the remaining 40 percent
of the state’s allocation directly to eligible units of local government, as determined by a
statutorily prescribed formula, within the state.

Page 17

GAO-12-569 Indigent Defense

Figure 1: Percentage of Survey Respondents that Received DOJ Formula Grants or BIA Tribal Courts TPA Funds and
Reported Allocating These Funds for Indigent Defense

Note: We provide separate data on JAG State Administering Agencies—which directly receive 60
percent of the state’s JAG allocation—and localities and tribes that receive JAG funding—which
directly receive 40 percent of the state’s JAG allocation. Survey response rates upon which these
data were based were 68 percent for Tribal Courts TPA distribution recipients; 46 percent for JAG (89
percent for SAAs and 45 percent for localities and tribes); 89 percent for JJDP; 82 percent for JABG.
Because of the relatively low response rates among recipients of BIA Tribal Courts TPA distributions
and local and tribal JAG recipients, their results should not be generalized to the recipients of BIA
Tribal Courts TPA distributions or local and tribal JAG recipient populations.

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

Page 18

GAO-12-569 Indigent Defense

percent for the TCCLA grant. 32 See appendix IV for additional information
on the number of discretionary grants awarded for indigent defense.

32

DOJ determined that 35 percent of TCCLA funding was awarded for indigent defense in
fiscal year 2010, and 51 percent was awarded for indigent defense in fiscal year 2011.
The fiscal year 2010 percentage differs from our analysis due to the differences in the
methodologies used to determine the percentage of grants awarded for indigent defense.
Specifically, DOJ calculated its percentage by dividing the grants awarded under Category
2—the purpose of which is to provide criminal legal assistance services—by the total
awards under the grant. In contrast, we reviewed each of the project descriptions
submitted by TCCLA grantees to determine whether the descriptions indicated that the
grantee planned to use the funds for indigent defense. Because the project descriptions
may not have included all the planned activities of the grantee, our methodology may not
have captured all grants that were awarded for indigent defense.

Page 19

GAO-12-569 Indigent Defense

Figure 2: Percentage of Discretionary Grants That Were Awarded Fully or in Part for
Indigent Defense during Fiscal Years 2005 through 2010

Note: No grants were awarded for indigent defense in the Tribal Juvenile Accountability Discretionary
Grant Program. For the years focused on in this review, DOJ awarded grants under the Byrne
Competitive Grant Program in fiscal years 2007 through 2010, the Tribal Civil and Criminal Legal
Assistance Grant Program in fiscal year 2010, the Tribal Court Assistance Program in fiscal years
2005 through 2010, the Justice and Mental Health Collaboration Grant Program in fiscal years 2007
through 2010, and the Drug Court Discretionary Grant Program in fiscal years 2005 through 2010.

In general, DOJ and BIA funding recipients who responded to our surveys
most frequently reported that other criminal or juvenile justice areas were
a higher priority and extremely or very important to their decisions not to
allocate funding for indigent defense, while public defenders generally
reported that they did not apply for discretionary grants because they
were not aware they were eligible to do so. Figures 3 and 4, as well as
the following sections, illustrate these responses in more detail.

Page 20

GAO-12-569 Indigent Defense

Figure 3: Percentage of JAG, JJDP, JABG, and Tribal Courts TPA Survey Respondents Reporting Reasons That Were
Extremely or Very Important to Their Decisions Not to Allocate Funding for Indigent Defense

N N N N
= = = =
9 3 3 3
6 9 0 4

N N N
=

= =

5

3 2

6

3 7

N N N N

N N N N

N N N

= = = =

= = = =

= =

=

7 3 2 2

5 1 1 2

1 8

6

7 2 6 5

2 1 0 5

0

N N N
N=
763

= = =
2 1 4
0 6 3

Note: The percentages are calculated out of only those respondents who indicated that the reasons
were valid in their jurisdiction. Concerns with sustainability refer to grantee’s concerns that indigent
defense positions funded through the grant would not be sustainable after the funding ended.
a

In order to compare responses across tribes, we did not ask Tribal Courts TPA or tribal JAG
respondents about decreased funding or funding sustainability because BIA funding through the
Tribal Courts TPA has been relatively constant from fiscal year 2005 through 2010.

b

We did not ask the remaining JAG, JABG, or JJDP respondents about the importance of not
providing indigent defense services because the respondents were generally representing state and
local government offices, and states and local governments are required to afford defendants,
including indigent defendants, the right to counsel.

Page 21

GAO-12-569 Indigent Defense

Figure 4: Percentage of Public Defender Survey Respondents Reporting Reasons
That Were Extremely or Very Important for Why They Did Not Apply for Grant
Funding (N=103)

Competing priorities: JAG respondents most frequently reported that
funding for law enforcement, such as overtime for police officers;
equipment, such as surveillance equipment or street lighting; and
technology, such as cameras for police vehicles, were higher priorities
than indigent defense. For instance, one JAG administrator with whom we
spoke explained that his city was laying off over 30 police officers.
Because there will now be fewer officers on the street to identify, report,
and respond to crime as it happens, his jurisdiction gave priority to
obtaining technology that would allow citizens to better report crimes as
opposed to providing funding for indigent defense. As figure 5 shows,
respondents to our JAG survey reported allocating the largest proportion
of funding to the law enforcement purpose area, followed by the planning,
evaluation, and technology improvement purpose area, in which funds
may be used for criminal justice information systems, such as automated

Page 22

GAO-12-569 Indigent Defense

fingerprint identification systems. See figures 5 and 6 for the percentage
of total JAG funding that respondents reported allocating to each of the
seven JAG purpose areas, compared to indigent defense. See appendix
V for additional information about survey respondents’ reported
allocations across purpose areas and for indigent defense in each fiscal
year.

Page 23

GAO-12-569 Indigent Defense

Figure 5: Percentage of Funding That JAG SAA Respondents Reported Allocating
to Each Purpose Area, Including Indigent Defense, during Fiscal Years 2005
through 2010

Note: Funding for indigent defense can be allocated in multiple purpose areas, as indigent defense is
not its own purpose area. As a result, to obtain the percentages allocated for each purpose area, we
subtracted the amount respondents reported allocating for indigent defense out of the specified
purpose area. As discussed in appendix I, dollar amount data reported have limitations and should be
considered estimates. In particular, in this figure, our 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. Similarly, 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. Other includes funds not yet allocated. Percentages
do not add up to 100 due to rounding.

Page 24

GAO-12-569 Indigent Defense

Figure 6: Percentage of Funding That JAG Local and Tribal Respondents Reported
Allocating to Each Purpose Area, As Well As Indigent Defense, during Fiscal Years
2005 through 2010

Note: Funding for indigent defense can be allocated in multiple purpose areas, as indigent defense is
not its own purpose area. As a result, to obtain the percentages allocated for each purpose area, we
subtracted the amount respondents reported allocating for indigent defense out of the specified
purpose area. As discussed in appendix I, dollar amount data reported have limitations and should be
considered estimates. In particular, in this figure, our 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. Similarly, 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. Other includes funds not yet allocated. Percentages
do not add up to 100 due to rounding.

The three JJDP and five JABG survey respondents who provided specific
examples of other activities that were higher priorities than indigent
defense most frequently cited alternatives to detention, such as services
provided to a juvenile offender in the community as an alternative to

Page 25

GAO-12-569 Indigent Defense

incarceration, and programs to address the disproportionate number of
juveniles of minority groups who come into contact with the juvenile
justice system. 33
Further, our review of the DOJ discretionary grants that can be, but are
not required to be, used for indigent defense also showed that, generally,
grantees that received these awards more frequently planned to use
these awards for other criminal justice priorities. For example, Byrne
Competitive grantees more frequently planned to use their awards to
support law enforcement and other criminal justice areas than indigent
defense. Figure 7 illustrates other criminal justice areas, such as law
enforcement, that grantees commonly planned to fund with Byrne
Competitive grants awarded from fiscal years 2007 through 2010.
Figure 7: Criminal Justice Areas Awarded Byrne Competitive Grants during Fiscal Years 2007 through 2010 (N=287)

Note: Other may include crime prevention, funding to prevent or address domestic violence, pretrial
justice, and county and state government criminal justice practitioners. For the years focused on in
this review, DOJ awarded Byrne Competitive Grants in fiscal years 2007 through 2010.

33
While Tribal Courts TPA survey respondents most commonly reported that other criminal
justice areas were higher priorities, five provided examples of these priorities, which were
law enforcement, court personnel, and prosecution.

Page 26

GAO-12-569 Indigent Defense

Several factors may help to explain why grants were more frequently
allocated or used for other criminal justice areas as opposed to indigent
defense. For instance, a JAG administrator with whom we spoke
indicated that JAG recipients often allocate funding to law enforcement
because the JAG grant has historically been a law enforcement grant. 34 In
addition, 83 percent (1,484 of 1,779) of JAG survey respondents reported
that their organization was a law enforcement entity—either a police
department or sheriff’s office—which may not naturally allocate funding
for indigent defense. Further, 64 percent (21 of 33) of JJDP, 63 percent
(17 of 27) of JABG, and 54 percent (302 of 564) of JAG survey
respondents reported that a decrease in the available grant funding was
extremely or very important to their decision not to allocate funding for
indigent defense. 35 Specifically, according to one JAG administrator,
decreases in JAG funding make it even less likely that jurisdictions that
have traditionally allocated funding for law enforcement will allocate
funding for indigent defense because the law enforcement agencies need
the money. Further, DOJ officials explained that OJP follows a “state and
local assistance model” in administering the JAG program, whereby DOJ
provides funding to states and localities but does not determine how the
jurisdictions allocate the funding. Instead, the states and localities
independently determine what issues within their respective jurisdictions
need funding, and then allocate funds for those purposes. As a result,
states and localities may choose not to allocate funding for indigent
defense but instead allocate it to these higher-priority areas.
The Attorney General stated that DOJ is continuing to work to bring all
criminal justice stakeholders, including indigent defense providers,
together to plan comprehensive criminal justice strategies, which will help
jurisdictions ensure that decisions are made with an eye toward
strengthening the criminal justice system. For instance, DOJ issued new
guidelines to JAG grantees in March 2012, within the fiscal year 2012
JAG solicitation, that encourage stakeholders to come together in a

34

The JAG program was formed from two existing grants, one of which was a law
enforcement-focused grant. Specifically, the JAG program was created following
enactment of the Violence Against Women and Department of Justice Reauthorization Act
of 2005, which merged the discretionary Edward Byrne Memorial Grant program with the
formula-based Local Law Enforcement Block Grant Program. See 42 U.S.C. § 3750.
35
Total population numbers of JAG, JABG, and JJDP that responded to this question do
not match the overall total survey population because some respondents did not answer
the question.

Page 27

GAO-12-569 Indigent Defense

comprehensive criminal justice planning process. Specifically, these
recommended guidelines specify that, at a minimum, the strategic
planning process include law enforcement, courts, prosecutors, indigent
defense providers, victim advocates, and corrections officials. Further, the
JAG solicitation asks applicants to identify, among other things, the
stakeholders currently participating in the strategic planning process.
According to DOJ officials, these guidelines may benefit indigent defense
providers in two ways. First, JAG funding is more likely to be shared with
a broader range of stakeholders if they are included in the planning
process, which our survey responses also suggest may be true.
Specifically, among the 4 percent of JAG grantees who reported that
representatives of the indigent defense community were involved in the
decision making process, 22 percent reported allocating funding for
indigent defense. In contrast, among the 52 percent who reported that
representatives of the indigent defense community were not involved in
the decision making process, 2 percent reported allocating funding for
indigent defense. 36 Second, if indigent defense providers are included in
the planning process, they can provide input to other stakeholders, such
as law enforcement personnel, about the impact that their use of JAG
funding may have on both the indigent defense provider and,
correspondingly, the criminal justice system. For instance, an indigent
defense expert explained that, when law enforcement or prosecutorial
agencies receive additional funding, arrests and prosecutions may
increase, which in turn increase indigent defense providers’ caseloads. If
the indigent defense provider does not receive additional funding to
handle the caseload, cases may take longer to move through the judicial
process.
Lack of awareness of eligibility for funding: Public defender offices or
agencies responding to our survey most frequently reported (67 of 103)
that their lack of awareness about their eligibility for funding was an
extremely or very important reason they did not apply for DOJ
discretionary grant funding from fiscal year 2005 through 2011. 37 For

36
These percentages do not total 100 percent because 45 percent of respondents
reported that they did not know if an indigent defense provider was involved in the
determination of how JAG funding would be used.
37

We asked public defender offices or agencies about their awareness of discretionary
grants because they could apply for these grants. We did not ask about their awareness of
formula grants or other funding sources because they do not have the opportunity to apply
directly to DOJ or BIA for these funds.

Page 28

GAO-12-569 Indigent Defense

instance, 3 public defenders who submitted additional comments also
reported that they would like to have a centralized source of information
on available grants, training, and best practices that they could use for
assistance. In addition, as shown in figure 8, no more than 54 percent of
Tribal Courts TPA, JABG, JAG, and JJDP survey respondents reported
that they were aware that funding could be allocated for indigent defense.
Figure 8: Survey Respondents Who Reported They Were Aware that Funding Could
Be Used for Indigent Defense

DOJ has undertaken efforts to make grantees aware of available funding.
It has provided training and technical assistance on the grant process and
a list of available grants on OJP’s Web site. DOJ has also provided a list
of grants that may be of interest to, among others, defender agencies, on
ATJ’s Web site. Further, ATJ officials reported that they collaborate with
public defender membership organizations, such as the National Legal
Aid and Defender Association and the National Association of Criminal
Defense Lawyers, to make indigent defense providers aware of grants. In
addition, they mention funding opportunities during speeches to the
indigent defense community. Moreover, DOJ officials reported that all
available grant opportunities are listed on grants.gov, the federal
government’s grant clearinghouse, and grantees can search the site
using keywords that would help them identify grants of interest, such as
those related to indigent defense. DOJ officials reported that they

Page 29

GAO-12-569 Indigent Defense

encourage potential applicants to sign up to receive information from
grants.gov. In addition, BIA officials stated that during the contracting
process tribes go through to obtain TPA funds, BIA may inform tribes that
they could use funding available through their Tribal Courts TPA
distribution for indigent defense—or any other component of tribal
courts—but did not know of any explicit efforts to make tribes aware.
Despite these efforts, no more than 54 percent of grantees or public
defender offices or agencies that responded to our survey were aware of
funding that could be used to support indigent defense. Moreover, 59
percent (22 of 37) of Tribal Courts TPA distribution, 53 percent (8 of 15)
of JABG, and 36 percent (5 of 14) of JJDP survey respondents reported
that such lack of awareness was an extremely or very important reason
why they did not allocate funding for indigent defense. 38 While relatively
few JAG recipients who responded to our surveys reported that lack of
awareness was an extremely or very important reason why they did not
allocate funding for indigent defense in the past, these states, localities,
and tribes could make indigent defense a higher priority in the future. As a
result, increasing awareness that federal funding can be used for this
purpose could help DOJ and BIA to ensure that potential funding
recipients are better positioned to respond to changing priorities. 39 In
addition, JAG (50 of 105), JABG (5 of 11), and JJDP (5 of 13) survey
respondents most frequently suggested in open-ended responses that, to
increase allocations for indigent defense, DOJ could take steps to
increase awareness that funding could be allocated for indigent defense,
such as by communicating this through e-mail, or during training sessions
or conferences. Given that funding through these grant programs can be
used, consistent with applicable authorizing statutes, to support indigent
defense, and because the Attorney General has identified a crisis in
criminal defense and has committed the department to focusing on
indigent defense issues, increasing awareness among grantees and
indigent defense providers about available funding could help DOJ better
ensure that it meets its commitment to supporting indigent defense. DOJ
grant administrators and ATJ officials acknowledged that opportunities

38

These percentages are calculated only out of those respondents that indicated that they
were not aware that funding could be used for indigent defense in any year from fiscal
year 2005 through 2010.
39
11 percent (90 of 837) of JAG survey respondents reported that lack of awareness was
an extremely or very important reason why they did not allocate funding for indigent
defense.

Page 30

GAO-12-569 Indigent Defense

exist to enhance grantees’ awareness of funding that can be allocated or
awarded for indigent defense. Further, in open-ended responses, 14
tribes stated that BIA should take actions to clarify that Tribal Courts TPA
distributions may be used for indigent defense. Consistent with BIA’s
authority to provide financial assistance to tribes through contracts,
compacts, or other means, to support the development, enhancement,
and continuing operation of tribal justice systems, including for the
employment and training of public defenders and appointed defense
counsel, increasing tribes’ awareness that funding may be used for
indigent defense could better position BIA and tribes to support such
systems. BIA officials responsible for providing assistance to tribal courts
agreed that they could take additional actions to help increase tribes’
awareness of funding available 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. 40 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). 41
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.

40
As previously discussed, recipients of grants that required that funding be allocated for
indigent defense—JRJ, CCLI, WCR, and JIDNC—allocated or planned to use such funds
for indigent defense in accordance with grant requirements. See appendix II for additional
details on these allocations and uses.
41
Because the discretionary awards include funding used in part for indigent defense,
these calculations are an upper bound of allocations to indigent defense as a percentage
of total award.

Page 31

GAO-12-569 Indigent Defense

Figure 9: Allocations for Indigent Defense as a Percentage of Total Awards among
Those Who Reported Allocating Funding for Indigent Defense, Fiscal Years 2005
through 2010

Note: As discussed in appendix I, there are limitations to these data, particularly for JAG respondents.
As a result, these numbers should be considered estimates.

Page 32

GAO-12-569 Indigent Defense

Figure 10: Amounts Awarded Fully or In Part for Indigent Defense, as a Percentage
of Total Amounts Awarded for Selected Discretionary Grants, during Fiscal Years
2005 through 2010

Note: Includes grants that were used fully or in part for indigent defense. Thus, these percentages
may represent the upper bound of the amounts awarded for indigent defense. Because the amount
awarded for indigent defense as a percentage of total awards in the Justice and Mental Health
Collaboration grants was so small, the percentage rounded to zero. No grants were awarded for
indigent defense from the Tribal Juvenile Accountability Discretionary Grant Program.

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.

Page 33

GAO-12-569 Indigent Defense

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.
Figure 11: Reported Uses of JABG and JJDP Grants Allocated for Indigent Defense

Note: Grants may be used for multiple purposes; therefore, single grants may be counted more than
once in the above graphic.

Page 34

GAO-12-569 Indigent Defense

Figure 12: Uses of Discretionary Grants Awarded for Indigent Defense

Note: Grants may be used for multiple purposes; therefore, single grants may be counted more than
once in the above graphic.

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

Page 35

GAO-12-569 Indigent Defense

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. 42
In addition, DOJ collected data on indigent defense funding for the Byrne
Competitive and TCCLA grants when funding for indigent defense was a

42

Data collection on indigent defense funding for the Wrongful Conviction Review Program
and Juvenile Indigent Defense National Clearinghouse is inherent because, according to
DOJ, all funding for these programs must be awarded for indigent defense.

Page 36

GAO-12-569 Indigent Defense

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
the funding. 43 According to BJA officials, DOJ created an indigent defense
“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

43
GAO, Law Enforcement Body Armor: DOJ Could Enhance Grant Management Controls
and Better Ensure Consistency in Grant Program Requirements, GAO-12-353
(Washington, D.C.: Feb. 15, 2012).

Page 37

GAO-12-569 Indigent Defense

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. 44
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. 45 Given that the Attorney
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.

44

These 5 respondents included all JABG recipients who reported allocating funding for
indigent defense from fiscal years 2005 through 2010 with whom we were able to conduct
an interview. We did not discuss the project identifiers with the remaining respondent. One
additional JABG respondent who reported allocating funding did not respond to our
requests for an interview.
45

GAO/GGD-96-118.

Page 38

GAO-12-569 Indigent Defense

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. 46 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
defended—in its revisions to its online performance measures. 47 For a list
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),

46
OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June
2003).
47

BJA launched the online Performance Measurement Tool in 2007 to improve upon its
previous grants management system and allow online performance data submission.
However, we previously reported that DOJ acknowledged that weaknesses exist in the
current JAG performance measures and were working to update the measures with input
from JAG SAAs. See GAO-11-87. After developing draft revisions to the Performance
Measurement Tool, DOJ posted the revised measures on its website and received
stakeholder comments.

Page 39

GAO-12-569 Indigent Defense

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). 48
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. 49 In addition, OMB strongly encourages the use of
outcomes because they are more meaningful to the public than outputs. 50
As we have previously reported, developing output measures is a step
toward developing outcome measures, and an important initial step in
measuring progress. 51 However, we have also previously reported that
leading organizations promote accountability by establishing resultsoriented, outcome goals and corresponding performance measures by
which to gauge progress towards attaining these goals. 52
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

48

OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June
2003); OMB, Circular No. A-11, Part 6: Preparation and Submission of Strategic Plans,
Annual Performance Plans, and Annual Performance Reports (Washington, D.C.: August
2011).

49

OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June
2003).

50

OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June
2003).
51

GAO, Warfighter Support: DOD Needs Strategic Outcome-Related Goals and Visibility
over Its Counter-IED Efforts, GAO-12-280 (Washington, D.C.: February 22, 2012).
52

GAO, Executive Guide: Effectively Implementing the Government Performance and
Results Act, GAO/GGD-96-118 (Washington, D.C.: June 1996).

Page 40

GAO-12-569 Indigent Defense

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 defenserelated 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. 53
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

53

See 42 U.S.C. § 3797cc–21(h) (requiring the Inspector of the Department of Justice to
submit a report to Congress, not later than 3 years after the date of enactment of this
section (enacted August 14, 2008), on the costs of the program and the impact of the
program on the hiring and retention of prosecutors and public defenders).

Page 41

GAO-12-569 Indigent Defense

and measures linked to the national goals that the grantee will address. 54
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 outcomeoriented 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. 55 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. 56 For example, one evaluation—conducted by the
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

54
OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June
2003).
55

GAO, Designing Evaluations, GAO-12-208G. Washington, D.C. January, 2012.

56

An additional 23 public defender offices or agencies reported that an evaluation had
been conducted, but did not provide us with or direct us to a copy.

Page 42

GAO-12-569 Indigent Defense

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. 57 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. 58
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. 59 Appendix VIII provides additional
information on the extent to which public defender offices or agencies

57
Respondents were permitted to select more than one factor influencing their decision not
to conduct an evaluation.
58

BJA, Keeping Defender Workloads Manageable (Washington, D.C.: January 2001).

59

National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of
our Constitutional Right to Counsel (Washington, D.C.: April 2009).

Page 43

GAO-12-569 Indigent Defense

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
private attorneys in one city. 60 The study found that, in the city evaluated,
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.
In addition, in 2010, OJP held a National Symposium on Indigent
Defense, which about 500 participants attended, including public
defenders and state and local criminal and juvenile justice policymakers
and practitioners. The symposium included presentations by experts on
topics related to indigent defense, such as managing limited indigent
defense resources in difficult economic times, among other things. 61
Further, in 2011, NIJ collaborated with ATJ to hold a workshop to identify

60

Preliminary findings on RAND’s NIJ grant are available at Henderson, JM & P. Heaton,
How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder
Case Outcomes (Dec. 2011). According to NIJ officials, NIJ has been conducting and
supporting research on issues related to indigent defense since the 1980s.
61

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.

Page 44

GAO-12-569 Indigent Defense

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. 62 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. 63 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. 64
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. 65 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

62

DOJ, Expert Working Group Report: International Perspectives on Indigent Defense,
NCJ236022 (September 2011).
63

According to OJP, practices are evidence-based when their effectiveness has been
demonstrated by causal evidence, generally obtained through outcome evaluations, which
documents a relationship between an intervention and its intended outcome, while ruling
out, to the extent possible, alternative explanations for the outcome.
64

In its 2011 report, Cornerstone for Justice: Byrne JAG and its Impact on the Criminal
Justice System, the National Criminal Justice Association highlighted the state of
Minnesota for using JAG funds to support public defenders.
65
According to DOJ, the recommendations documented in the report produced by the
workshop on domestic and international best practices for indigent defense informed this
solicitation.

Page 45

GAO-12-569 Indigent Defense

focused on important issues surrounding indigent defense. 66 This
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

66
Indigent defense stakeholders cite invalid waivers—which, according to stakeholders,
occur when defendants are not properly informed of their right to counsel—and lack of
experts, investigators and interpreters as impediments to competent and effective defense
services. National Right to Counsel Committee, Justice Denied: America’s Continuing
Neglect of our Constitutional Right to Counsel (Washington, D.C.: April 2009).

Page 46

GAO-12-569 Indigent Defense

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

Page 47

GAO-12-569 Indigent Defense

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.

Page 48

GAO-12-569 Indigent Defense

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.

Eileen R. Larence
Director, Homeland Security and Justice Issues

Page 49

GAO-12-569 Indigent Defense

List of Requesters
The Honorable Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
The Honorable John Conyers, Jr.
Ranking Member
Committee on the Judiciary
House of Representatives
The Honorable Robert C. Scott
Ranking Member
Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary
House of Representatives
The Honorable Jerrold Nadler
Ranking Member
Subcommittee on the Constitution
Committee on the Judiciary
House of Representatives

Page 50

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology
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. 1 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,

1

We selected fiscal years 2005 through 2010 because you requested that we identify
federal funding that was used for indigent defense during this time frame. The Catalog for
Federal Domestic Assistance is a government-wide compendium of federal programs,
projects, services, and activities that provide assistance or benefits to the American public.
It contains financial and nonfinancial assistance programs administered by departments
and establishments of the federal government.

Page 51

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

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 Webbased 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

Page 52

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

Courts TPA distributions from fiscal years 2005 through 2010. 2 To
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.

2

An electronic supplement to this report—GAO-12-661SP (available June 2012)—
provides survey results. Amounts appropriated through the American Recovery and
Reinvestment Act of 2009 (ARRA) are also included in our review. See Pub. L. No. 111-5,
123 Stat. 115, 130 (2009). Formula grants are funding programs for which the primary
grantees do not compete, although they must submit an application and meet other
specified requirements. These grants are usually administered and managed by State
Administering Agencies (SAA), and the amount of the grant awards are calculated by a
formula most often governed or established by statute, which may consider factors such
as population or crime data. In addition, we identified BIA funding to Courts of Indian
Offenses (referred to as “CFR courts”) that could be used for indigent defense. We did not
include CFR courts in our survey of tribal courts because CFR courts constitute direct
services administered by BIA officials. However, according to BIA officials, every CFR
court has a law-trained public defender. Also, based on discussions with BIA officials, we
did not include tribal courts in BIA’s Alaska region.

Page 53

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

Table 4: Survey Distribution, Populations, Respondents and Rates, and Generalizability
Date survey
distributed

Grant program

Eligible
population

Number of Response rate,
respondents
in percent

Considered
generalizable?

Juvenile Justice and Delinquency
Prevention Title II

September 22, 2011

56

50

89

Yes

Juvenile Accountability Block Grant

September 22, 2011

56

46

82

Yes

Justice Assistance Grant (overall state
and local)
States
Localities

October 17, 2011

a

1,807
50
1757

46
89
45

No
Yes
No

b

3,934
56
3878

Justice Assistance Grant (tribes)

December 22, 2011

29

11

38

No

Tribal Courts TPA

December 21, 2011

154

105

68

No

Source: GAO analysis of survey data.
a

For the state and local JAG survey, we provisionally identified, and on October 17, 2011, attempted
to contact 3,970 recipients. We later determined that 36 were ineligible or duplicates. Therefore, our
final eligible population was 3,934.

b

For the purposes of this report, we have combined all the tribal JAG responses with the responses of
state and local JAG recipients.

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.

Page 54

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

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

Page 55

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

delinquency prevention organizations, appellate defenders, drug
treatment providers, community and public outreach providers, nonattorney 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). 3 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.

3
BJS, County-based and Local Public Defender Offices, 2007 (Washington, D.C.:
September 2010); BJS, State Public Defender Programs, 2007 (Washington, D.C.:
September 2010).

Page 56

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

Table 5: Public Defender Offices by Stratum and Population, Cases Selected, and Sample Size
Stratum

Stratum name

Population

Number of cases

Effective sample

Response rate

22

22

22

100%

6

6

4.8

100%

Certainty strata
1

State offices

2

Territories

3

Tribes

17

17

13.6

59%

4

Public defender offices—major metro areas

53

52

42.4

50%

5

Secondary offices not in major metro areas

71

71

56.8

41%

169

169

139.6

Primary offices

672

85

68.8

Total sample

841

253

208.4

Subtotal certainties
Random sample
6

a

29%

Source: GAO analysis of survey population.
a

By primary office, we mean the office or agency which has been designated by a local jurisdiction as
its chief provider of indigent defense services. In general, the primary office will handle the bulk of
indigent defense services in its respective jurisdiction, with other services being provided by another
office, agency or individual in accordance with predetermined contractual agreement, capacity
limitations (where applicable), or compliance with ethical and professional standards relating to
conflicts of interest.

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,

Page 57

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

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

Page 58

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

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. 4
To determine the extent to which DOJ can assess the impact of grant
programs that specify that funds must be spent for indigent defense or
highlight it as a priority, we reviewed performance measures outlined in
DOJ grant solicitations. We compared DOJ’s measures against criteria in
Office of Management and Budget (OMB) guidance 5 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

4

GAO, Executive Guide: Effectively Implementing the Government Performance and
Results Act, GAO/GGD-96-118, (Washington, D.C.: June 1996).

5

OMB, Performance Measurement Challenges and Strategies (Washington, D.C.: June
2003).

Page 59

GAO-12-569 Indigent Defense

Appendix I: Objectives, Scope, and
Methodology

towards attaining these goals. 6 Two analysts also independently reviewed
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.
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 peerreviewed 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. 7 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.
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.

6

GAO-10-95.

7

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.

Page 60

GAO-12-569 Indigent Defense

Appendix II: Allocations and Uses of DOJ
Grants That Required Indigent Defense
Funding
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.
Table 6: Number and Amount of Awards for Indigent Defense for DOJ Grant Programs That Required Funding for Indigent
Defense
Fiscal years in which
the grant was active
from fiscal year 20052010

Number of grants
awarded in all active
fiscal years

Total amount awarded
for indigent defense

Awards to indigent
defense as percentage
of total funding

a

John R. Justice

2010

51

$5.1 million

50%

Capital Case Litigation
b
Initiative

2007-2010

33

$3.3 million

63%

Wrongful Conviction
c
Review

2009-2010

24

$4.6 million

89%

2010

1

$500,000

100%

Juvenile Indigent Defense
National Clearinghouse

Source: GAO analysis of DOJ data.
a

John R. Justice data include $244,834 (2 percent of total funding) for federal public defenders; the
remaining amounts were awarded to state and local public defenders. One state obtained a waiver
from the requirement to allocate funding equally to prosecutors and defenders as it had few eligible
defenders and no defenders with any outstanding student loans to qualify for the repayment in the
state, and thus awarded all of its funding to prosecutors.

b

Capital Case Litigation data are greater than the 50 percent required for indigent defense because
they include 18 grants for $3.2 million that were awarded to indigent defense in combination with
another purpose, but we were unable to determine the exact amount of funding awarded for indigent
defense alone.

c

Wrongful Conviction data do not reflect that all grants and funding were awarded for indigent defense
because, due to our methodology for categorizing grantees, two grantees were categorized as state
appellate defender offices, which we classified as a separate group from indigent defense providers
that handle defendants’ initial cases, and one as a nonprofit organization. However, these grantees’
project descriptions indicated that they would utilize the grant to provide representation in postconviction claims of innocence, in accordance with grant requirements.

Page 61

GAO-12-569 Indigent Defense

Appendix III: Percentage of Survey
Respondents That Allocated Funding for
Indigent Defense and Allocation Amounts
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. 1 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.

1

Forty-six percent of JAG recipients (1,818 of 3,963, including 89 percent of SAAs and 45
percent of localities and tribes) completed the JAG survey; 82 percent of JABG recipients
(46 of 56) completed the JABG survey; 89 percent of JJDP recipients (50 of 56)
completed the JJDP survey; and 63 percent (106 of 169) of recipients completed the
Tribal Courts 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 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
respondents participating in our survey and should not be generalized to the population of
JAG recipients or recipients of BIA Tribal Courts TPA distributions.

Page 62

GAO-12-569 Indigent Defense

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

Figure 13: Percentage of JAG State, Local, and Tribal Survey Respondents That
Reported Allocating Funding for Indigent Defense, by Fiscal Year

Note: Because so few localities and tribes reported allocating funding for indigent defense, the
numbers rounded to zero.

Page 63

GAO-12-569 Indigent Defense

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

Figure 14: Percentage of JJDP and JABG Survey Respondents That Reported
Allocating Funding for Indigent Defense, by Fiscal Year

Page 64

GAO-12-569 Indigent Defense

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

Figure 15: Percentage of BIA Tribal Courts TPA Funding Survey Respondents That
Reported Allocating Funding for Indigent Defense, by Fiscal Year

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

Page 65

GAO-12-569 Indigent Defense

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

respondents that were unable to split their funding across purpose areas
may have reported allocating all funding to law enforcement.
Figure 16: Reported Allocations as a Percentage of Total Award, by Fiscal Year,
among JAG Respondents Who Reported Allocating Funding for Indigent Defense

Page 66

GAO-12-569 Indigent Defense

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

Figure 17: Reported Allocations as a Percentage of Total Award, by Fiscal Year,
among JABG and JJDP Respondents Who Reported Allocating Funding for
Indigent Defense

Page 67

GAO-12-569 Indigent Defense

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

Figure 18: Reported Allocations as a Percentage of Total Award, by Fiscal Year,
among BIA Tribal Courts TPA Respondents Who Reported Allocating Funding for
Indigent Defense

Page 68

GAO-12-569 Indigent Defense

Appendix IV: Additional Details on Number
of Indigent Defense Discretionary Awards
and Award Amounts
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.
Table 7: Awards and Allocations in Whole or in Part for Indigent Defense, by Discretionary Grant that Did Not Require
Spending for this Purpose
Number of grants
awarded, fiscal years
2005 through 2010

Percentage of total
grants awarded that
were for indigent
defense

Maximum possible
Maximum possible
allocation to indigent
total allocation to defense, as percentage
of total funding
indigent defense

Byrne Competitive

18

6.3%

$4,058,585

2.7%

Adult Drug Court
Discretionary Grant
Program

9

2.8%

$2,088,137

2.5%

Justice and Mental Health
Collaboration Grant
Program

2

1.3%

$99,955

0.4%

Tribal Courts Assistance
Program

16

7.9%

$3,863,679

8.0%

Tribal Civil and Criminal
Legal Assistance

2

25.0%

$281,400

7.1%

Tribal Juvenile
Accountability
Discretionary Grant

0

0%

$0

0%

Source: GAO analysis of DOJ data.

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.

Page 69

GAO-12-569 Indigent Defense

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

Figure 19: Percentage of Grants Awarded in Whole or in Part for Indigent Defense;
Fiscal Years 2005 through 2010

Note: DOJ determined that 35 percent of TCCLA funding was awarded for indigent defense in fiscal
year 2010, and 51 percent was awarded for indigent defense in fiscal year 2011. The fiscal year 2010
percentage differs from our analysis due to the differences in the methodologies used to determine
the percentage of grants awarded for indigent defense. Specifically, DOJ calculated its percentage by
dividing the grants awarded under Category 2—the purpose of which is to provide criminal legal
assistance services—by the total awards under the grant. In contrast, we reviewed each of the project
descriptions submitted by TCCLA grantees to determine whether the descriptions indicated that the
grantee planned to use the funds for indigent defense. Because the project descriptions may not have
included all the planned activities of the grantee, our methodology may not have captured all grants
that were awarded for indigent defense.

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.

Page 70

GAO-12-569 Indigent Defense

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

Figure 20: Indigent Defense Awards, as a Maximum Possible Percentage of Total
Awards; Fiscal Years 2005 through 2010

Note: The figure includes grants that were used fully or in part for indigent defense. The Tribal
Juvenile Accountability Discretionary Grant Program had no grants awarded for indigent defense and,
thus, is not included in the figure.

Page 71

GAO-12-569 Indigent Defense

Appendix V: JAG Survey Respondents’
Allocations across Purpose Areas and for
Indigent Defense, by Fiscal Year
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. 1 The
figures also include the percentage of their total awards that these
respondents reported allocating for indigent defense. 2 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.

1

Forty-six percent of JAG recipients (1,818 of 3,963, including 89 percent of SAAs and 45
percent of localities and tribes) completed the JAG survey. While all eligible members of
our target population of JAG and recipients were included in our survey, due to the
relatively low response rate and the possibility of other errors all questionnaire surveys
face, our results represent only respondents participating in our survey and should not be
generalized to the population of JAG recipients.
2

Funding for indigent defense can be allocated in multiple purpose areas, as indigent
defense is not its own purpose area. As a result, to obtain the percentages allocated for
each purpose area, we subtracted the amount respondents reported allocating for indigent
defense out of the specified purpose area.

Page 72

GAO-12-569 Indigent Defense

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

Figure 21: SAAs’ Reported Allocations across JAG Purpose Areas and for Indigent
Defense as a Percentage of Total Awards, Fiscal Year 2005

Note: Other includes funds not yet allocated.

Page 73

GAO-12-569 Indigent Defense

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

Figure 22: SAAs’ Reported Allocations across JAG Purpose Areas and for Indigent
Defense as a Percentage of Total Awards, Fiscal Year 2006

Note: Other includes funds not yet allocated. Percentages do not add up to 100 due to rounding.

Page 74

GAO-12-569 Indigent Defense

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

Figure 23: SAAs’ Reported Allocations across JAG Purpose Areas and for Indigent
Defense as a Percentage of Total Awards, Fiscal Year 2007

Note: Other includes funds not yet allocated. Percentages do not add up to 100 due to rounding.

Page 75

GAO-12-569 Indigent Defense

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

Figure 24: SAAs’ Reported Allocations across JAG Purpose Areas and for Indigent
Defense as a Percentage of Total Awards, Fiscal Year 2008

Note: Other includes funds not yet allocated.

Page 76

GAO-12-569 Indigent Defense

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

Figure 25: SAAs’ Reported Allocations across JAG Purpose Areas and for Indigent
Defense as a Percentage of Total Awards, Fiscal Year 2009

Note: Other includes funds not yet allocated.

Page 77

GAO-12-569 Indigent Defense

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

Figure 26: SAAs’ Reported Allocations across JAG Purpose Areas and for Indigent
Defense as a Percentage of Total Awards, ARRA

Note: Other includes funds not yet allocated. Percentages do not add up to 100 due to rounding.

Page 78

GAO-12-569 Indigent Defense

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

Figure 27: SAAs’ Reported Allocations across JAG Purpose Areas and for Indigent
Defense as a Percentage of Total Awards, Fiscal Year 2010

Note: Other includes funds not yet allocated.

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.

Page 79

GAO-12-569 Indigent Defense

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

Figure 28: Local and Tribal JAG Recipients’ Reported Allocations across JAG
Purpose Areas and for Indigent Defense as a Percentage of Total Awards, Fiscal
Year 2005

Page 80

GAO-12-569 Indigent Defense

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

Figure 29: Local and Tribal JAG Recipients’ Reported Allocations across JAG
Purpose Areas and for Indigent Defense as a Percentage of Total Awards, Fiscal
Year 2006

Note: Percentages do not add up to 100 due to rounding.

Page 81

GAO-12-569 Indigent Defense

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

Figure 30: Local and Tribal JAG Recipients’ Reported Allocations across JAG
Purpose Areas and for Indigent Defense as a Percentage of Total Awards, Fiscal
Year 2007

Note: Percentages do not add up to 100 due to rounding.

Page 82

GAO-12-569 Indigent Defense

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

Figure 31: Local and Tribal JAG Recipients’ Reported Allocations across JAG
Purpose Areas and for Indigent Defense as a Percentage of Total Awards, Fiscal
Year 2008

Note: Percentages do not add up to 100 due to rounding.

Page 83

GAO-12-569 Indigent Defense

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

Figure 32: Local and Tribal JAG Recipients’ Reported Allocations across JAG
Purpose Areas and for Indigent Defense as a Percentage of Total Awards, Fiscal
Year 2009

Note: Other includes funds not yet allocated.

Page 84

GAO-12-569 Indigent Defense

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

Figure 33: Local and Tribal JAG Recipients’ Reported Allocations across JAG
Purpose Areas and for Indigent Defense as a Percentage of Total Awards, ARRA

Note: Other includes funds not yet allocated. Percentages do not add up to 100 due to rounding.

Page 85

GAO-12-569 Indigent Defense

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

Figure 34: Local and Tribal JAG Recipients’ Reported Allocations across JAG
Purpose Areas and for Indigent Defense as a Percentage of Total Awards, Fiscal
Year 2010

Note: Percentages do not add up to 100 due to rounding.

Page 86

GAO-12-569 Indigent Defense

Appendix VI: Analysis of Indigent DefenseRelated Performance Measures for
Department of Justice Grant Programs
Appendix VI: Analysis of Indigent DefenseRelated 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.

Page 87

GAO-12-569 Indigent Defense

Appendix VI: Analysis of Indigent DefenseRelated Performance Measures for Department
of Justice Grant Programs

Table 8: Indigent Defense-Related Performance Measures and Type of Measure for DOJ Grant Programs
Grant

Objectives

Performance measure

Byrne Competitive Grant
Program–National
a
Initiative: Adjudication

Increase the number of trained
public defenders.
Increase the knowledge of
criminal justice practitioners
through in-person training.
Increase the knowledge of
criminal justice practitioners
through web-based learning.
Increase the knowledge of
criminal justice practitioners
through distance learning using
CD/DVDs.
Increase a criminal justice
agency’s ability to solve
problems and/or modify
policies or practices.
Increase the knowledge of
criminal justice practitioners
through the development
and/or revision of training
curricula.
Increase information provided
to the criminal justice
community.

Percentage of trainees who
successfully completed the
program

Page 88

Output Outcome Input Process
X

Percentage of trainees who
completed the training whose
post test indicated an improved
score over their pre-test
Percent increase in trained public
defenders

X

X

Percentage of trainees who
completed the training who rated
the training as satisfactory or
better

X

Percentage of organizations that
completed the survey who
expressed satisfaction that the
CD/DVD met their training needs

X

Percentage of requesting
agencies who rated services as
satisfactory or better in terms of
timeliness and quality following
completion of an onsite visit

X

Percentage of requesting
agencies that were planning to
implement at least some of the
report recommendations six
months after the onsite visit

X

Percentage of requesting
agencies of other onsite services
who rated the services provided
as satisfactory or better

X

Percentage of advisory/focus
groups evaluated as satisfactory
or better

X

Percentage of curricula that were
pilot tested

X

Percentage of curricula that were
revised after pilot testing

X

GAO-12-569 Indigent Defense

Appendix VI: Analysis of Indigent DefenseRelated Performance Measures for Department
of Justice Grant Programs

Grant

Objectives

Byrne Memorial Justice
Assistance Grant
Program

JAG funds may be used for
Number of cases defended
state and local initiatives,
technical assistance, training,
personnel, equipment,
supplies, contractual support,
and criminal justice information
systems that will improve or
enhance such areas as:
•
Law enforcement
programs
•
Prosecution and court
programs
•
Prevention and education
programs
•
Corrections and
community corrections
programs
•
Drug treatment and
enforcement programs
•
Planning, evaluation, and
technology improvement
programs
•
Crime victim and witness
programs (other than
compensation)

Capital Case Litigation
Initiative

Performance measure

Provide training on death
penalty issues to attorneys who
litigate death penalty cases.
Increase the knowledge of
criminal justice practitioners
through in-person training.

Percent increase in the number
of capital litigation attorneys
trained in capital case procedures
and strategies
Percentage of in-person trainees
who successfully completed the
program

Output Outcome Input Process

X

X

X

Percentage of in-person trainees
who completed the training
whose post-test indicated an
improved score over their pre-test
Number of attorneys trained
Percentage of in-person trainees
who completed the training who
rated the training as satisfactory
or better

Page 89

X
X
X

GAO-12-569 Indigent Defense

Appendix VI: Analysis of Indigent DefenseRelated Performance Measures for Department
of Justice Grant Programs

Grant

Objectives

Performance measure

John R. Justice Grant
Program

To encourage qualified
individuals to enter and
continue employment as
prosecutors and public
defenders.

Number and amount of loan
repayments awarded

X

Percent increase in outreach to
eligible beneficiaries

X

Average number of days between
application for repayment
benefits and the loan repayment
occurring

X

Juvenile Accountability
b
Block Grant Program

The goal of the JABG program
is to reduce juvenile offending
through accountability-based
programs focused on the
offender and juvenile justice
system.
The objective is to ensure that
states address 1 or more of 17
purpose areas and receive
information on best practices
from OJJDP. [Note: indigent
defense is included within the
purpose area “Hiring Court
Staff/Pretrial Services.”]

Output Outcome Input Process

Percent of people exhibiting an
increased knowledge of the
program area during the reporting
period

X

Number of program policies
changed, improved, or rescinded
during the reporting period

X

Percent of organizations
reporting improvements in
operations based on training and
technical assistance (TTA)

X

Number of hours per week and
percent of staff time (including
defenders) spent directly serving
clients

X

Amount of funds awarded for
system improvement

Page 90

X

Number and percent of defenders
hired

X

Number of cases per staff
member

X

Number and percent of vacant
positions for defenders

X

Number of training requests
received

X

Number of technical assistance
requests received

X

Number of program materials
developed during the reporting
period

X

Number of planning or training
events held during the reporting
period

X

Number of people trained during
the reporting period

X

GAO-12-569 Indigent Defense

Appendix VI: Analysis of Indigent DefenseRelated Performance Measures for Department
of Justice Grant Programs

Grant

Juvenile Indigent
Defense National
Clearinghouse Program

Tribal Civil and Criminal
Legal Assistance
c
Program

Objectives

Performance measure

To improve juvenile indigent
defense; objectives include to
increase:
•
training opportunities for
juvenile indigent defense
•
technical support efforts
for juvenile indigent
defense
•
publications and resources
for juvenile indigent
defense
•
policy development and
leadership opportunities

(Category 2) Provide criminal
legal assistance services for
Indian tribes, members of
Indian tribes, and tribal justice
systems, pursuant to the
federal poverty guidelines.
Criminal legal assistance
services may include adult
criminal actions, juvenile
delinquency actions, guardian
ad litem appointments arising
out of criminal or delinquency
d
acts.

Page 91

Output Outcome Input Process

Percent of those served by TTA
who reported implementing an
evidence based program and/or
practice during or after the TTA

X

Percentage of people exhibiting
increased knowledge of the
program area

X

Percentage of organizations
reporting improvements in
operations based on training and
technical assistance

X

Number of program policies
changed, improved, or rescinded

X

Percentage of those served by
TTA who reported implementing
an evidence-based
program/practice during/after
TTA

X

Number of training requests
received

X

Number of technical assistance
requests received

X

Number of program materials
developed

X

Number of planning or training
events held

X

Number of people trained

X

Percent increase in number of
defendants served

X

Percent of defendants who rated
the services of their grant-funded
attorney as satisfactory or better
X

GAO-12-569 Indigent Defense

Appendix VI: Analysis of Indigent DefenseRelated Performance Measures for Department
of Justice Grant Programs

Grant

Objectives

Performance measure

Tribal Juvenile
Accountability
Discretionary Grant
e
Program

To provide funds to federally
recognized American Indian
and Alaska Native (AI/AN)
communities to develop and
implement programs that hold
AI/AN youth accountable for
their delinquent behavior and
strengthen tribal juvenile justice
systems.
Among the 17 purpose areas is
the following: “hiring juvenile
court judges, probation officers,
and court-appointed defenders
and special advocates, and
funding pretrial services
(including mental health
screening and assessment) for
juvenile offenders, to promote
the effective and expeditious
administration of the juvenile
justice system.

Percentage of eligible youth
served using graduated sanctions
f
approaches

Output Outcome Input Process
X

Percentage of funds awarded for
system improvement

X

Percentage of program youth
completing program requirements

X

Percentage of programs
employing evidence-based
practices, i.e., a practice shown
through rigorous evaluation and
replication to be effective in
preventing or reducing
delinquency or related risk factors

X

Percentage of youth with whom
an evidence-based practice was
used

X

Percentage of program youth
who reoffend (rearrested or seen
at juvenile court for a new
offense)

X

Number and percent of defenders
hired

X

Number of cases per staff
member

X

Number and percent of vacant
positions for defenders
Number of hours per week and
percent of staff time spent directly
serving clients
Wrongful Conviction
g
Review Program

Provide representation to
defendants in post-conviction
claims of innocence cases.

Page 92

X
X

Number of cases in which actual
perpetrators are identified though
re-examination of evidence

X

Percent of cases in which actual
perpetrators are identified
through re-examination of
evidence in post-conviction
innocence claims

X

Percent increase in number of
cases evaluated for potential
wrongful convictions

X

Number of people/experts
consulted.

X

Number of hours of forensic reanalysis services provided

X

GAO-12-569 Indigent Defense

Appendix VI: Analysis of Indigent DefenseRelated Performance Measures for Department
of Justice Grant Programs

Grant

Objectives

Performance measure
Number of hours of screening,
evaluation, and litigation services
provided

Output Outcome Input Process
X

Source: GAO analysis of DOJ grant documents.
a

The measures for the Byrne Competitive Grant Program were only for the year and category for
which indigent defense funding was a priority.

b

Measures displayed for the Juvenile Accountability Block Grant Program include those which are
related to indigent defense; measures unrelated to indigent defense are not displayed.

c

The measures for the Tribal Civil and Criminal Legal Assistance Program were for fiscal year 2010
and only for the category for which indigent defense funding was a priority.

d

A guardian ad litem is an individual, usually a lawyer, appointed by the court to represent the
interests of a minor or incompetent person in a legal action.

e

Measures displayed for the Tribal Juvenile Accountability Discretionary Grant Program include those
which are related to indigent defense; measures unrelated to indigent defense are not displayed.

f
For example, the term “graduated sanctions” has been defined as an accountability-based,
graduated series of sanctions (including incentives, treatment, and services) applicable to juveniles
within the juvenile justice system to hold such juveniles accountable for their actions and to protect
communities from the effects of juvenile delinquency by providing appropriate sanctions for every act
for which a juvenile is adjudicated delinquent, by inducing their law-abiding behavior, and by
preventing their subsequent involvement with the juvenile justice system. See 42 U.S.C. § 5603(24).
g

The Wrongful Conviction Review Program limits eligibility for funding to non-profit organizations as
well as public defender offices that represent convicted defendants (who, according to DOJ, are
indigent), in claims of innocence. As a result, we consider the grant to be related to indigent defense.

Page 93

GAO-12-569 Indigent Defense

Appendix VII: Select Measures, Findings, and
Recommendations from Public Defender
Office and Agency Evaluations and Reports
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.
Table 9: Summary of Select Measures, Findings, and Recommendations from Public Defender Evaluations and Reports
Office or
Agency
(Random
Identifier)

Measures

Findings

Recommendations

Reporting
period

Evaluator

1

•

Caseload (for each attorney;
weighted by case type)
•
Training (number of staff that
attended each offering)
•
Cases opened and closed
(sum totals)
•
Length of cases (average
number of days open)
Active and inactive cases (sum
totals)

N/A

N/A

Year

Internal

2

•

Attorney turnover rate is
high.
Jail visits and use of
investigators are
inconsistent across
attorneys.
Expert witness requests
are not always handled
properly.
Supervision of attorneys
does not provide quality
control.

Increase use of
Quarter
investigators, as
appropriate; consider
providing training on this
topic.
Provide defenders with
training opportunities each
quarter.
Supervisor should be more
proactive in monitoring
staff.
Address continued
problems related to sealing
motions.

•

•

•
•
•
•
•
•
•
•
•
•
•

Attorney staffing levels
Caseloads (office total by
case type; quarterly caseload
by attorney for select case
types as percentage of office
total)
Training (attorney attendance
at continuing legal education
programs offered during
reporting period)
Representation at clients’ first
appearances
Timeliness of jail visits
Client complaints
Investigator staffing and use
of investigators (rate)
Use of experts
Supervision
Motions Practice
Trials (number and type)
Use of interpreters
Overall quality of
representation
Conflicts

Page 94

External
(appointed
monitor)

GAO-12-569 Indigent Defense

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

Office or
Agency
(Random
Identifier)

Measures

3

•

•
•

4

•
•
•
•
•
•
•
•

5

•
•
•
•
•
•
•
•
•

Reporting
period

Evaluator

Year

Internal

Findings

Recommendations

Number of cases assigned to
ad hoc counsel over ten
a
years
Debentures received for ad
b
hoc cases
Cost per disposed ad hoc
case

The ad hoc program is
the most fiscally
unpredictable and costly
method of providing
public defense services,
with little or no check on
the quality of
representation provided.

Continue to expand the
assigned counsel contract
program.
Maintain the Serious
Felony Units.
Impose firm caps
consistent with
administrative order.
Enforce strict standards for
identifying conflicts.
Refuse payment of
assignments for frivolous
post conviction relief
matters.

Independence
Attorney qualifications
Training
Supervision
Workload
Attorney-client relationships
Parity between prosecution
and defense
Involvement of private bar

Agency is a model
provider of indigent
defense services,
meeting or exceeding all
recognized national
standards for the
delivery of indigent
defense services.
Agency is independent;
controls caseloads; and
has sufficient funding to
represent every client
competently.

Consider evaluating the
Snapshot of
need to reduce supervisory current
caseload.
conditions
Consider formalizing
rotations to reduce
turnover.
Consider creating a fulltime training director.
Consider creating the
position of a full-time
assigned counsel
administrator.
Draft bylaws.

External
(consultant)

Professional independence
Attorney qualifications
Training
Supervision
Workload
Evaluation, performance and
discipline
Support services
Case management and
quality control
Reporting

Provider exceeded the
contractual requirement.
Moreover, the
percentage of felonies
and misdemeanors was
sufficiently high as to
cause that caseload to
exceed the maximum
standard in each year of
the reporting period.
Provider has failed to
institute a sufficiently
formalized system of
supervision and review.

Monitor case intake to
prevent workload from
exceeding caseload
standard.
Meet level of basic
compliance standard
regarding attorney
evaluation and discipline.
Increase the number of
formal checks of
management and quality
controls.

External
(oversight
body)

Page 95

2 years

GAO-12-569 Indigent Defense

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

Office or
Agency
(Random
Identifier)

Measures

6

•
•
•
•
•

7

•

•
•
•
•
•
•

•
•
•

Reporting
period

Findings

Recommendations

Office space
Technology
Organizational Leadership
and Structure
Attorney recruitment,
retention & staff needs
Education and development
programs

Provider has the
leadership capacity and
present ability to
successfully fulfill its
obligations to its clients,
to the courts and justice
systems, to its
community, and to the
county.

Plan ahead for replacement Multi-year
and/or upgrading of
hardware and software,
and work together to
sustain the current high
level of technology
competence.
Implement management
reorganization that
establishes a clear,
integrated line of
supervision and authority
that would, among other
things, preserve a chief
defender responsible and
accountable for all aspects
of the operation, but also
include supervisors
authorized to direct and
manage particular
administrative and
representational
responsibilities.
Consider adding staff to
meet current and
anticipated case and
workload challenges.

External
(consultant)

Uniformity of the public
defender system across the
state
Performance assessment and
accountability
Reliance on part-time public
defenders
Strategic planning and
budgeting
Management of resource
reductions
Size and nature of public
defender workloads
Impact of public defender
workloads on how they do
their work
Case outcomes
Court efficiency
Statutory framework for
determining eligibility for

Public defender
workloads are too high,
resulting in public
defenders spending
limited time with clients,
difficulties preparing
cases, and scheduling
problems that hinder the
efficient operation of
criminal courts.
Staff reductions are the
most immediate cause
of high workloads, but
case complexity and
other factors add to the
time required per case.
Heavy reliance on parttime public defenders
presents risks that need
to be addressed, but the
public defender’s office
has few staff resources

The Board of Public
Multi-year
Defense (BPD) should
ensure that district chief
public defenders’
presentations to the board
focus more on district
performance and
challenges rather than
descriptive characteristics
of the district.
The state public defender
should establish stricter
criteria for the structure and
content of district chiefs’
work plans.
BPD and the state public
defender should establish
standards for and
measures of quality
representation of clients.
BPD and the state public
defender should improve

External
(government
auditor)

Page 96

Evaluator

GAO-12-569 Indigent Defense

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

Office or
Agency
(Random
Identifier)

Measures

•

•
•
•

appointment of a public
defender
Application of statutory
eligibility criteria by judges
and court staff
Procedures for determining
eligibility
Accuracy of eligibility
determinations
Ordering, collection, and
distribution of
reimbursements

Findings

Recommendations

available for planning,
research, and policy
development activities.
Oversight body has
strengthened
accountability in the
public defender system
but could do more to
measure and supervise
the quality of services.
Standards for
determining eligibility for
a public defender are
not clearly defined in
law, and judges
reported wide
differences in how they
weigh eligibility factors.
Judges reported having
little confidence in the
accuracy of information
they use to assess
defendants’ financial
circumstances, but it
appears that the vast
majority of applicants
cannot afford a private
attorney.
Law requires
defendants with some
financial means to
reimburse a portion of
their public defender
costs, but
reimbursements are
inconsistently ordered
and collected.

management practices that
ensure active supervision
of full- and part-time
assistant public defenders
to monitor their
performance representing
clients and litigating in
court.
BPD and the state public
defender should complete
long-range planning efforts
to: estimate future staffing
needs in light of anticipated
retirements among long
time public defenders;
evaluate the proper
balance of full-time and
part-time public defenders
needed in the future; study
the costs associated with
establishing additional
public defender satellite
offices; and consider other
options to recruit and retain
public defenders.
BPD should seek the
resources necessary to
fund a planning and
analysis position in the
administrative services
office.
When funding becomes
available, BPD should
conduct a caseload study
that includes methods
sufficient to develop
separate caseload
standards for metropolitan
area, suburban, and rural
public defender districts.
The state public defender
should ensure that the
office collects and records
staff counts by position at
regular intervals during the
fiscal year.

Page 97

Reporting
period

Evaluator

GAO-12-569 Indigent Defense

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

Office or
Agency
(Random
Identifier)

Measures

8

•
•
•

Case processing
Structure and number of
public defense contractors
Quality of representation

Reporting
period

Findings

Recommendations

In juvenile cases, the
average period from first
appearance to
jurisdiction is more than
90 days.
Attorneys need training
on how to conform to
performance standards.
There is a need for
additional attorneys in
the county.

Consider structure of
Snapshot of
current public defense
current
systems and the need for
conditions
additional attorneys in
developing a service
delivery plan.
Consider offering longer
contracts to indigent
defense providers who are
willing to relocate or live in
remote areas.
Consider supplementing
insufficient trial-level
caseloads with appellate
work.
Consider law school
recruitment and specialized
apprenticeship training for
new lawyers interested in
relocating.
Consider assisting
providers with office space
and initial capital needs.

Page 98

Evaluator
External
(oversight
body)

GAO-12-569 Indigent Defense

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

Office or
Agency
(Random
Identifier)

Measures

9

•
•
•
•
•
•

Caseloads
Indigency standards and
eligibility requirements
Attorney turnover rates
Staffing and personnel issues
Compensation
Organizational practices
(overhead, office location,
technology, resources, etc.)

Reporting
period

Findings

Recommendations

There has been no
increase in staff in prior
6 years while caseload
has increased by
12,000 cases.
Attorney turnover rate is
high.
Attorney supervisors
carry full caseloads,
resulting in inadequate
training, mentoring, and
supervision.
Office space is
inadequate.

Research and consider
Snapshot of
specifying circumstances
current
that would trigger the right conditions
to be represented by a
public defender in probation
violation cases.
Take efforts to return the
caseloads to the caseload
standard.
Contract out certain cases
involving misdemeanors,
traffic violations, and
probation violations to
private attorneys when
economically feasible in
order to reduce the
numbers of cases for which
each public defender is
responsible.
Promulgate a rule requiring
prosecuting attorneys to file
all charges against the
same defendant arising out
of the same transaction or
occurrence in a single
document.
Eliminate certain
unconstitutional court costs
and replace them with a
lesser court cost to help
fund the public defender
system and provide
revenue to pay contract
attorneys, fund an increase
in support staff and fund an
increase in base salary for
public defenders.
Research the feasibility of
creating a student loan
forgiveness program.
Make technology available
to the counties of the state
to allow attorneys to meet
with their clients via
videoconference or
teleconference.

Evaluator
External
(oversight
body)

Source: GAO analysis of evaluations and reports from select public defender offices or agencies who responded to GAO survey and
provided GAO with copies or directed GAO to publicly available copies.

Page 99

GAO-12-569 Indigent Defense

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

Note: The evaluations summarized above were conducted by or on behalf of survey respondents;
GAO has not assessed the quality of the evaluations or their results.
a

Consistent with Office 3 documentation, ad hoc cases are those cases in which representation is
provided by assigned attorneys who are not staff employees of the public defender office or agency to
avoid a conflict of interest.

b

In this context, a debenture is a submission by assigned counsel to the public defender office or
agency to request compensation for time and funding expended in providing representation in ad hoc
cases.

Page 100

GAO-12-569 Indigent Defense

Appendix VIII: Possible Data Elements for
Evaluating Public Defender Offices, Extent to
Which Respondents Collect Related Data,
and Data Challenges and Limitations
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.
Table 10: Survey Respondents Collecting Data Elements and Associated Challenges
Data element

Percentage
a
collecting data

Challenges and limitations associated with
data (based on 118 possible respondents)

Average caseload per defender

87% (97 of 112)

Costly to collect: 6% (7 )
Difficult/burdensome to collect:10% (11)
Difficult to measure: 7% (8 )
Imprecise: 7% (8)

Number of active cases per defender

84% (95 of 113)

Costly to collect: 6% (7 )
Difficult/burdensome to collect: 10% (12)
Difficult to measure: 3% (4 )
Imprecise:11% (13)

Average salary or hourly rate of defenders, as
applicable

76% (83 of 109)

Costly to collect: 3% (4)
Difficult/burdensome to collect: 6% (7)
Difficult to measure: 3% (3)
Imprecise: 5% (6 )

Whether or not defenders are in compliance
with professional and ethical standards

67% (74 of 111)

Costly to collect:6% (7)
Difficult/burdensome to collect:11% (13)
Difficult to measure:14% (16)
Imprecise: 13% (15)

Whether or not salary is accompanied by
additional benefits (e.g., loan repayment, health
insurance)

66% (72 of 109)

Costly to collect:4% (5)
Difficult/burdensome to collect: 6% (7)
Difficult to measure: 3% (4)
Imprecise: 3% (4)

Ratio of attorneys to non-attorney support staff
(e.g., clerical, paralegal, etc.)

65% (72 of 110)

Costly to collect: 3% (4)
Difficult/burdensome to collect: 7% (8)
Difficult to measure: 7% (8)
Imprecise: 2% (2)

Whether or not cases are handled using a case
management system

62% (68 of 111)

Costly to collect: 12% (14)
Difficult/burdensome to collect: 8% (9)
Difficult to measure: 3% (4)
Imprecise: 7% (8)

Page 101

GAO-12-569 Indigent Defense

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

Percentage
a
collecting data

Challenges and limitations associated with
data (based on 118 possible respondents)

Whether or not the same defender represents a
client in all stages of proceedings once he or
she is assigned the case (vertical
representation)

61% (69 of 113)

Costly to collect: 9% (10)
Difficult/burdensome to collect:13% (15)
Difficult to measure: 5% (6)
Imprecise: 6% (7)

Average number of defenders’ continuing legal
education (CLE) and/or training hours
completed per year

59% (66 of 112)

Costly to collect: 3% (4)
Difficult/burdensome to collect: 6% (7)
Difficult to measure: 3% (3)
Imprecise: 3% (3)

Average caseload per defender, relative to any
established caseload standard (e.g. some
percent or number higher or lower than
whatever standard is used, as applicable)

57% (64 of 112)

Costly to collect: 5% (6)
Difficult/burdensome to collect: 10% (12)
Difficult to measure: 15% (17)
Imprecise: 15% (17)

Ratio of attorneys to investigators

56% (61 of 108)

Costly to collect: 4% (5)
Difficult/burdensome to collect: 5% (6)
Difficult to measure: 5% (6)
Imprecise: 3% (4)

Type(s) of cases a defender has ever handled
(e.g. capital, felony, misdemeanor, juvenile,
etc.)

54% (60 of 112)

Costly to collect: 11% (13)
Difficult/burdensome to collect: 27% (3)
Difficult to measure: 10% (12)
Imprecise: 10% (12)

Number of requests for funding for expert
witnesses

48% (51 of 107)

Costly to collect: 8% (9)
Difficult/burdensome to collect: 18% (2)
Difficult to measure: 8% (9)
Imprecise: 7% (8)

Number of times expert witnesses are used

42% (46 of 110)

Costly to collect: 10% (12)
Difficult/burdensome to collect: 22% (26)
Difficult to measure: 5% (6)
Imprecise: 9% (10)

Individual defender performance ratings, as
determined by a methodology in place at your
office or agency

40% (44 of 110)

Costly to collect: 7% (8)
Difficult/burdensome to collect: 19% (22)
Difficult to measure: 31% (36)
Imprecise: 18% (21)

Number of cases a defender has ever handled

41% (45 of 111)

Costly to collect: 11% (13)
Difficult/burdensome to collect: 34% (40)
Difficult to measure: 18% (21)
Imprecise: 15% (17)

Data element

Page 102

GAO-12-569 Indigent Defense

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

Percentage
a
collecting data

Challenges and limitations associated with
data (based on 118 possible respondents)

Whether or not a defender is present for the
client’s first appearance

38% (43 of 113)

Costly to collect: 12% (14)
Difficult/burdensome to collect: 24% (28)
Difficult to measure: 13% (15)
Imprecise: 10% (12)

Meetings held between defender and client
(per case)

38% (42 of 111)

Costly to collect: 12% (14)
Difficult/burdensome to collect: 39% (46)
Difficult to measure: 11% (13)
Imprecise: 12% (14)

Amount of time defender spends per case

33% (37 of 113)

Costly to collect: 12% (14)
Difficult/burdensome to collect: 45% (53)
Difficult to measure: 23% (27)
Imprecise: 19% (22)

Complexity of cases a defender has ever
handled (e.g. number and/or severity of
charges)

32% (36 of 112)

Costly to collect: 14% (16)
Difficult/burdensome to collect: 36% (42)
Difficult to measure: 26% (30)
Imprecise: 27% (32)

Amount of face-to-face time defender spends
with client

23% (25 of 111)

Costly to collect: 16% (19)
Difficult/burdensome to collect: 50% (59)
Difficult to measure: 15% (18)
Imprecise: 15% (17)

Elapsed time between arrest and appointment
of counsel

20% (23 of 113)

Costly to collect: 15% (18)
Difficult/burdensome to collect: 34% (40)
Difficult to measure: 15% (18)
Imprecise: 11% (1)

Satisfaction of other criminal justice partners

14% (15 of 109)

Costly to collect: 13% (15)
Difficult/burdensome to collect: 27% (31)
Difficult to measure: 36% (42)
Imprecise: 30% (35)

8% (9 of 106)

Costly to collect: 18% (21)
Difficult/burdensome to collect: 38% (44)
Difficult to measure: 48% (56)
Imprecise: 32% (37)

Data element

Satisfaction of clients

Source: GAO analysis of survey data.
a

The number responding to each question varied.

Page 103

GAO-12-569 Indigent Defense

Appendix IX: Comments from the
Department of Justice
Appendix IX: Comments from the Department
of Justice

Page 104

GAO-12-569 Indigent Defense

Appendix IX: Comments from the Department
of Justice

Page 105

GAO-12-569 Indigent Defense

Appendix IX: Comments from the Department
of Justice

Page 106

GAO-12-569 Indigent Defense

Appendix IX: Comments from the Department
of Justice

Page 107

GAO-12-569 Indigent Defense

Appendix IX: Comments from the Department
of Justice

Page 108

GAO-12-569 Indigent Defense

Appendix X: GAO Contact and Staff
Acknowledgments
Appendix X: GAO Contact and Staff
Acknowledgments

GAO Contact

Eileen R. Larence, (202) 512-8777 or larencee@gao.gov

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.

(440949)

Page 109

GAO-12-569 Indigent Defense

GAO’s Mission

The Government Accountability Office, the audit, evaluation, and
investigative arm of Congress, exists to support Congress in meeting its
constitutional responsibilities and to help improve the performance and
accountability of the federal government for the American people. GAO
examines the use of public funds; evaluates federal programs and
policies; and provides analyses, recommendations, and other assistance
to help Congress make informed oversight, policy, and funding decisions.
GAO’s commitment to good government is reflected in its core values of
accountability, integrity, and reliability.

Obtaining Copies of
GAO Reports and
Testimony

The fastest and easiest way to obtain copies of GAO documents at no
cost is through GAO’s website (www.gao.gov). Each weekday afternoon,
GAO posts on its website newly released reports, testimony, and
correspondence. To have GAO e-mail you a list of newly posted products,
go to www.gao.gov and select “E-mail Updates.”

Order by Phone

The price of each GAO publication reflects GAO’s actual cost of
production and distribution and depends on the number of pages in the
publication and whether the publication is printed in color or black and
white. Pricing and ordering information is posted on GAO’s website,
http://www.gao.gov/ordering.htm.
Place orders by calling (202) 512-6000, toll free (866) 801-7077, or
TDD (202) 512-2537.
Orders may be paid for using American Express, Discover Card,
MasterCard, Visa, check, or money order. Call for additional information.

Connect with GAO

Connect with GAO on Facebook, Flickr, Twitter, and YouTube.
Subscribe to our RSS Feeds or E-mail Updates. Listen to our Podcasts.
Visit GAO on the web at www.gao.gov.

To Report Fraud,
Waste, and Abuse in
Federal Programs

Contact:
Website: www.gao.gov/fraudnet/fraudnet.htm
E-mail: fraudnet@gao.gov
Automated answering system: (800) 424-5454 or (202) 512-7470

Congressional
Relations

Katherine Siggerud, Managing Director, siggerudk@gao.gov, (202) 5124400, U.S. Government Accountability Office, 441 G Street NW, Room
7125, Washington, DC 20548

Public Affairs

Chuck Young, Managing Director, youngc1@gao.gov, (202) 512-4800
U.S. Government Accountability Office, 441 G Street NW, Room 7149
Washington, DC 20548

Please Print on Recycled Paper.

 

 

The Habeas Citebook Ineffective Counsel Side
Advertise Here 4th Ad
Prison Profiteers - Side