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March 01, 2012

ABA Submits Focus Group’s Indigent Defense Findings

The ABA submitted a report to U.S, Attorney General Eric H. Holder Jr. earlier this year with the five key findings of the National Focus Group on Indigent Defense Reform, which was brought together to identify concrete strategies for reforming and strengthening indigent defense services throughout the United States.

The Bureau of Justice Assistance funded the 18-member Focus Group through a grant to the ABA Standing Committee on Legal Aid and Indigent Defendants with the National Association of Criminal Defense Lawyers as a subgrantee. Participants included representatives from all branches of state government, prosecutors, defenders, and leaders of non-governmental organizations dedicated to improving indigent defense systems.

The Focus Group believes that Justice Department support for adoption of the five core findings would demonstrably improve prospects for indigent defense reform.

The following summarize four key core findings that reflect existing ABA policy:

  • Any solution to the indigent defense crisis in America must focus on the front end of the system as much as the back end. Over-reliance on criminal prosecution for petty, non-violent offenses, for which people seldom receive jail sentences, drives defender caseloads to unmanageable extremes. Many jurisdictions have begun to experiment with reclassification of offenses to relieve the pressure, and the Focus Group believes leadership from the Justice Department can help reverse America’s reliance on the criminal justice system as the tool of first choice to influence social behavior that is inherently criminal.
  • There is an urgent need for the Justice Department to support programs that assure that counsel is provided at the initial appearance in every situation where a person is criminally charged and their liberty is at stake. The costs to communities for detaining unrepresented persons charged with minor offenses are better invested in providing for the early appearance of counsel, whose representation can facilitate better, quicker and less costly outcomes.
  • The Justice Department could exert leadership through policies and ongoing communications to ensure that the defense bar is consulted prior to the adoption of any new law enforcement strategies that will impact case processing or caseloads.
  • The Justice Department should fully recognize that public defense requires the active involvement of the private bar as well as public defenders.

The fifth core finding, on which the ABA has not yet adopted policy but is expected to consider at a later date, states that the Justice Department should act and/or seek the tools necessary to assertively support full realization of the Sixth Amendment right to counsel. Where there is clear evidence of systemic denial of the right to counsel, the department can, through filing of amicus briefs, support systemic litigation that seeks to reform state or local indigent defense systems. The department also could also seek enactment of legislation conferring federal jurisdiction upon the agency to bring actions to remedy systemic violations of the Sixth Amendment.

During the ABA Midyear Meeting in February, Holder applauded the recommendation of the Focus Group.

 “Together, this diverse group worked to develop concrete strategies for reforming our nation’s indigent defense systems, and to identify actions that the Justice Department can take to help facilitate this work,” Holder said. “Their findings … will undoubtedly guide reform efforts long into the future. And their recommendations will reinforce the robust commitment that the department has already demonstrated.”

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