I always believed that the primary reason of trial in a court of law was to reach the truth. My trial was far from the truth. —Clarence Earl Gideon, Letter to attorney Abe Fortas, November 13, 1962
The mission of the U.S. Department of Justice (DOJ) is, and always has been, not merely to win cases—but to see that justice is done. Attorney General Robert Kennedy acknowledged this truth just two months after the landmark Supreme Court decision in Gideon v. Wainwright, when he told the Senate Judiciary Committee that poor people must have counsel in criminal cases so that justice can prevail.
Although fifty years after Gideon much has been accomplished, the reality is that this country remains a long way from meeting the standard set forth in Gideon. That a crisis exists today in indigent defense is beyond dispute; poor people often do not have access to counsel, and when they do get an attorney, that lawyer is often overworked, undertrained, undercompensated, and placed in a system that encourages a quick plea bargain and discourages carefully listening to the needs of clients. The problem is enormous, but it is not intractable. To make progress, all system stakeholders—law enforcement, courts; prosecutors; defenders; corrections officials; and federal, state, and county governments—must dedicate themselves to resolving the crisis and enabling this country to live up to its guarantee of equal justice for all.
Over the past four years, among the steps that Attorney General Eric H. Holder Jr. has recognized as key to addressing the indigent defense crisis are making model standards for public defense systems a reality; collecting better data, and increasing the evidence base, in order to deepen understanding of the barriers that defendants commonly face in securing effective representation; reconceiving and expanding the role of the public defender; and engaging a diverse group of stakeholders to increase support for the defender function. The attorney general has used the bully pulpit to exhort stakeholders to take action on these steps, and has brought together leaders from the defense bar, prosecutors, judges, and others to discuss the crisis in indigent defense and explore solutions. He has also charged the DOJ to “leave no stone unturned in identifying potential funding sources, legislative initiatives, and other ways we can work with our state and local partners to establish effective public defense systems.”
Access to Justice Initiative
With these objectives in mind, in February 2010, the attorney general convened the National Symposium on Indigent Defense: Looking Back, Looking Forward, 2000–2010, which brought together stakeholders from all parts of the criminal justice system. The symposium served the dual purpose of charting how far the country has come and identifying critical areas that need improvement moving forward. While acknowledging progress in the nearly half a century since the Supreme Court’s decision in Gideon v. Wainwright and its progeny, Holder concluded that “these cases have yet to be fully translated into reality” and committed to “take concrete steps to make access to justice a permanent part of the work of the Department of Justice.”
Following the symposium, Holder launched the Access to Justice Initiative, initially led by Harvard Law Professor Laurence Tribe. Since then, the Access to Justice Initiative—now three years old—has been working to improve the justice delivery systems that serve people who are unable to afford lawyers in both the criminal and civil justice systems. Indigent defense reform is a critical piece of the office’s work, and the Initiative provides a centralized focus for carrying out the DOJ’s commitments to improving indigent defense and enhancing the delivery of legal services.
Since its launch, the Access to Justice Initiative has been working with state, local, tribal, and federal officials—as well as a variety of nonprofit and private-sector partners—to broaden access to quality legal representation, to highlight best practices, and to bring new allies into this important work.
Alongside the Initiative, the Office of Justice Programs (including the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, and the Office of Juvenile Justice and Delinquency Prevention), the Civil Rights Division, and a number of other components are working to develop strategies, tools, and resources to help the DOJ better understand and tackle the indigent defense crisis.
Strengthening Indigent Defense Systems Through Standards
The DOJ’s current efforts to address the indigent defense crisis are not new. Over the last fifty years, the DOJ has come to play a key role in supporting public defender systems, especially with respect to indigent defense standards. Prior to the 1960s, only about 3 percent of all counties in the United States had defender systems. While Gideon unquestionably caused defender offices to proliferate, the Supreme Court did not provide a roadmap for implementation.
Fortunately, Attorney General Nicholas Katzenbach began to address this void as chair of President Lyndon Johnson’s Commission on Law Enforcement and Administration of Justice, which studied the problem of crime in America. Regarding defender services, the Commission’s 1967 report described the Commissioners’ “shock” at seeing what they called “assembly line justice”: badly trained personnel with huge caseloads. They recommended providing qualified defense counsel for those accused of misdemeanors and felonies, state-financed defender systems, and government-financed counsel in proceedings’ early stages.
Soon after, the DOJ funded two national commissions to make indigent defense services more uniform, effective, and efficient. The resulting standards and related commentary—developed by the National Advisory Commission on Criminal Justice Standards and Goals and the National Study Commission on Defense Services—addressed many of the issues raised in the president’s Commission report, including defender caseloads, supervision and training, office and system structure, and client eligibility.
These original standards have been incorporated, in part, into a series of American Bar Association and National Legal Aid & Defender Association guidelines, including the most frequently cited ABA Ten Principles of a Public Defense Delivery System. The Ten Principles have been widely regarded as representing criteria that are fundamental to the establishment of systems to deliver effective, efficient, and quality legal representation for indigent criminal defendants. Variants of these influential standards have shaped thousands of judicial opinions, adoption of court rules of criminal procedure, administrative regulations, and rules of conduct for both prosecutors and defense attorneys.
Throughout her tenure, Attorney General Janet Reno took steps to promote indigent defense standards along with other strategies to strengthen indigent defense services. Her address to the historic 1999 National Symposium on Indigent Defense presaged Attorney General Holder’s remarks a decade later, when he spoke of improving the state of indigent defense in America and described standards as the building blocks of a well-functioning public defender system at the National Symposium on Indigent Defense: Looking Back, Looking Forward 2000–10.
In 2012, describing the ABA standards as an “essential guidepost” for effective and efficient defense systems, Holder announced a $1.2 million grant program, Answering Gideon’s Call: Strengthening Indigent Defense Through Implementing the ABA Ten Principles of a Public Defense Delivery System. After receiving an impressive number of qualified applications, the Office of Justice Programs’ Bureau of Justice Assistance awarded grants to four agencies in Texas, Delaware, Massachusetts, and Michigan this past fall. The Harris County Public Defender’s office in Texas received funding to establish a training, mentoring, and supervision program for newly appointed counsel. Grant funds will help the Delaware Criminal Justice Counsel to enhance the state’s ability to handle cases where the public defender is conflicted out of representation. The Massachusetts Committee for Public Counsel Services, working with the Center for Court Innovation, will study and improve the way that data drive decision making, and the Michigan State Appellate Defender Office will use its award to improve advocacy at sentencing. Each of these four Answering Gideon’s Call grantees is partnered with a research organization in order to track outcomes. The DOJ’s expectation is that investments in this grant program will not only pay dividends in the jurisdictions that received an award, but—through evaluation—will contribute more broadly to indigent defense knowledge and practice on approaches to improving the quality of indigent defense services.
“Dedicated, well-trained defenders are core elements of an effective justice system, and our role in the federal government is to make sure they have the knowledge and tools they need to perform their jobs well,” says Mary Lou Leary, acting assistant attorney general for the Office of Justice Programs. “Our Answering Gideon’s Call grants, which help public defenders meet the ABA Ten Principles of a Public Defense Delivery System, are part of a full menu of programs, training opportunities, and research activities supported by the Office of Justice Programs to promote the fair administration of justice.”
Increasing the Number, Retention, and Quality of Public Defenders
Jurisdictions attempting to achieve the ABA Ten Principles of a Public Defense Delivery System need well-trained lawyers who have manageable caseloads. The DOJ has instituted a number of projects, programs, and funding opportunities to support and assist state and local indigent defense systems to increase the number, retention, and quality of public defenders. In 2010, with funding provided under the American Recovery and Reinvestment Act, the Office of Justice Programs launched an Indigent Defense Hiring Project to reduce caseloads and improve the quality of representation available to indigent defendants. The DOJ also provided seed money for a national fellowship program aimed at increasing the number of qualified public defense lawyers. Today, the John R. Justice Program—a student loan repayment program administered by the Office of Justice Programs for qualified public defenders and state prosecutors who agree to remain in their post for at least three years—helps defender offices recruit and retain lawyers who work to ensure the integrity of the criminal justice system.
In addition to initiatives like these, and like the DOJ’s National Training and Technical Assistance Center—which accepts requests for and provides training and technical assistance to state and local criminal justice stakeholders—the Bureau of Justice Assistance has funded a trial skills training program targeted to indigent defense counsel. To date, program partners the American Bar Association’s Standing Committing on Legal Aid and Indigent Defendants and the National Association of Criminal Defense Lawyers have provided training to over 500 attorneys. Bureau of Justice Assistance grant funds also supported an ABA-SCLAID, NACDL-hosted convening of innovators in the indigent defense field and the development and publication of a related report.
Thanks in part to training from the DOJ’s Capital Case Litigation Initiative grant program, several state agencies are beginning to improve the quality of representation in capital cases. The Wrongful Conviction Review Program is providing public defenders and nonprofits with funding to help provide quality representation in post-conviction claims of innocence.
The DOJ is also assisting defenders in Indian Country. Working with the Bureau of Indian Affairs’ Office of Justice Services—Office of Tribal Justice Support, the DOJ’s Access to Justice Initiative has organized a series of free trial advocacy courses designed specifically for tribal courts. This Tribal Court Trial Advocacy Training Program is designed to enhance the trial advocacy skills for tribal court defenders, prosecutors, and judges. The program endeavors to strengthen tribal courts in furtherance of the Tribal Law and Order Act of 2010 by enhancing the skills of those who appear in tribal courts so that tribes can exercise greater sovereignty in criminal justice matters that occur on their lands. Since 2011, seven trainings have been held throughout Indian Country, training over 200 individuals, and at the time of the publication of this article, four more are scheduled for the coming year.
Expanding the Role of the Public Defender and Supporting Innovative Models of Defense
The DOJ is deeply interested in mechanisms that support innovative defense models and improve resources, systems, and community support for defender services. Over the last three years, in addition to distributing grants to increase the retention, number, and quality of public defenders, the DOJ has directly funded efforts to expand the use of the holistic defense model, an innovative approach that seeks to address the interrelated needs of individuals in the criminal justice system. To date, the Bureau of Justice Assistance has awarded over $500,000 to the Bronx Defenders, along with two partner grantees, to provide training and technical assistance for public defenders in the area of holistic advocacy.
Bringing Defenders into Criminal Justice Planning Conversations
In addition to the variety of projects and discretionary grant programs described above, the DOJ administers a number of formula block grants, or noncompetitive grant funding, to states and localities not only to assist them in reducing and preventing crime, violence, and drug abuse, but also to improve both the criminal and juvenile justice systems. The Edward Byrne Memorial Justice Assistance Grant Program (JAG) is the largest of the DOJ’s grant programs. In 2012, nearly $300 million was allocated to states and localities to support federal, state, local, and tribal governments in implementing innovative approaches in a wide range of criminal justice program areas. Defenders, however, have not consistently been a part of local and state jurisdictions’ planning processes for allocating JAG funds and have not consistently received a portion of these funds. Public defenders constitute only about three percent of all criminal justice expenditures in our nation’s largest counties. Accordingly, the DOJ is helping public defense programs strategize about how to get involved in the decision-making process related to funding and, generally, find support in difficult economic times.
The Access to Justice Initiative and Bureau of Justice Assistance have been working together to promote increased representation of the indigent defense community on the state and local advisory committees responsible for allocating JAG and other criminal justice funds. Notably, a report released in 2012 by the Government Accountability Office, which assessed the DOJ’s support for indigent defense, found that among the four percent of JAG grantees who reported representatives from the indigent defense community involved in the decision-making process for allocating JAG funds, twenty-three percent reported allocating funding for indigent defense. In contrast, for those that reported that representatives from the indigent defense community were not involved in the decision-making process, only two percent reported allocating funding for indigent defense.
Since 2010, indigent defense has been identified by the DOJ as one of several key priority areas for maximizing the effectiveness of JAG funding. The most recent JAG solicitation stated that the strategic planning process should include a variety of partners, including law enforcement, courts, prosecutors, indigent defense providers, victim advocates, and corrections officials. For the first time, it also required applicants to submit a program narrative that not only describes the strategic planning process, but also identifies the stakeholders currently participating in the process. The DOJ is using this information to better assess the extent to which states are engaged in strategic planning and whether the recommendation that these efforts include all criminal justice stakeholders, including indigent defense, is being followed.
The Access to Justice Initiative and Bureau of Justice Assistance, along with the National Criminal Justice Association, are also conducting a series of webinars to highlight the DOJ’s ongoing work to encourage jurisdictions to bring together all system stakeholders to showcase strategies for integrating the indigent defense and other functions into criminal justice resource planning, and to provide information on state and federal resources available to the public defense and courts community.
Investing in Research and Data Collection
In January 2011, the Access to Justice Initiative and the National Institute of Justice’s International Center co‐sponsored an Expert Working Group on International Perspectives on Indigent Defense. The purpose of the workshop was to identify both domestic and international best practices for representing low‐income defendants and to devise a research agenda on indigent defense in the United States. The forty‐person group consisted of leading experts from nine countries drawn from multidisciplinary communities, including domestic and international practitioners, researchers, advocates, and government officials.
A report summarizing the workshop and the expert working group’s recommendations helped inform the National Institute of Justice’s Solicitation for Social Science Research on Indigent Defense, issued in 2012. The $1.6 million grant program is funding three research projects that will evaluate and examine (1) holistic defense models, (2) factors that impact juveniles’ waiver of counsel, and (3) the challenges of representing indigent defendants with mental health disorders. The findings will contribute to policy and practice recommendations that should be easily accessible to practitioners and other stakeholders across the country.
The DOJ has also expanded its commitment to collect accurate and meaningful data on public defense programs. The Bureau of Justice Statistics is currently updating and enhancing the 2007 Census of Public Defender Offices, which will include data to be collected in 2014 on system structure, caseloads, staffing, expenditures, and the use of standards and guidelines across the country. The census for the first time will include data provided by contract attorneys and assigned counsel, in addition to public defender offices. The expanded survey will provide a clearer picture of the current state of indigent defense.
Enforcement Activities
The Memorandum of Agreement is comprehensive in its recognition of the importance of counsel. Along with establishing a specialized unit for juvenile defense, it also requires Shelby County to provide special training for juvenile defenders, including training on trial/advocacy skills and knowledge of adolescent development; ensures that juvenile defenders have appropriate administrative support, reasonable workloads, and sufficient resources; and calls for the implementation of attorney practice standards for juvenile defenders. The Memorandum of Agreement also laid out performance metrics, the number of children represented by the Juvenile Defender Office and by private counsel, the stage of the juvenile justice process at which counsel was appointed, and the average caseload of each juvenile defender.
“In Shelby County, Tennessee, the Civil Rights Division took a comprehensive look at what was necessary to uphold the constitutional rights of all children appearing before the Juvenile Court,” said Thomas Perez, Assistant Attorney General for Civil Rights. “To secure those rights, access to qualified, well-trained counsel—no matter what your income level—is essential, and this agreement will make sure children have those protections.”
International Guidelines and Best Practices in Indigent Defense
The DOJ, through the Access to Justice Initiative, has also been working to support the right to counsel at the international level. On December 20, 2012, the UN General Assembly adopted the first international document on indigent defense. The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems is the result of a multiyear effort by the United Nations, nongovernmental organizations, and member states. And it affirms that indigent defense “is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law.”
This document, which offers best practices in the provision of legal aid in the criminal justice context, reflects the aspirations of the ABA Ten Principles of a Public Defense Delivery System. But as a document adopted by the UN General Assembly, to which the United States is a member, it has more force. As a secondary source of law, much like a U.S. Restatement of the Law, it is another tool that American practitioners can use in demanding higher standards in the delivery of indigent defense.
As the primary office in the Executive Branch concerned with indigent defense and civil legal aid, the Initiative played a key role in formulating the U.S. position on the document and helped shepherd it through the formal adoption process. This included participation of the U.S. delegation to the UN Crime Commission in April 2012 in Vienna, Austria, where the document began its journey to adoption by the General Assembly. Importantly, the United States was a co-sponsor of the resolution that first adopted the document in Vienna and maintained its strong and vocal support throughout the process, including through remarks made by Attorney General Holder and Acting Associate Attorney General Tony West at meetings related to the opening of the 67th Session of the UN General Assembly.
While this country’s struggle with meeting its constitutional obligation to provide the right to counsel continues, the United States’ experience in this area—as well as its successes and failures—can be instructive to other countries still at the beginning stages of developing their own public defender systems. The United States’ participation in international efforts not only creates opportunities to improve our own criminal justice system, but also provides opportunities to share our lessons learned. As West stated, “These comprehensive guidelines and principles can be effective tools in strengthening and expanding existing criminal legal aid systems throughout the world.”
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Speaking before the Legal Aid Society of Cleveland last fall, Holder said, “[D]espite the promise of Gideon, the basic rights guaranteed almost five decades ago have yet to be fully realized. And there remains no guaranteed right to counsel in the civil context. Unfortunately, the day has not yet arrived when all of our citizens can access legal help without having to wait, to sacrifice, or to worry. This is unconscionable. And, to all Americans, it must be viewed as unacceptable.”
He echoed the values expressed in the ABA’s Standards for Providing Defense Services: “Our system of justice is a reflection of our societal development, and the furnishing of adequate defense services a measure of our justice system.”
The efforts described in this article are indicative of the DOJ’s recognition that the promise of Gideon cannot be realized without the engagement and support of partners at the federal, state, and local levels, both within and outside of government, and without innovative new models to improve defender services.
Much remains to be done for this country to measure up, and the DOJ will continue its efforts to strengthen indigent defense. Fifty years after the decision in Gideon, it is long past time to realize the promise of that decision.
Deborah Leff is acting senior counselor for the Access to Justice Initiative at the U.S. Department of Justice. She has also held positions as director of the John F. Kennedy Presidential Library and Museum, CEO of Feeding America, and president of the Joyce Foundation. She worked for nine years as senior producer at ABC News, winning the Emmy and Peabody Awards for producing coverage of social justice and poverty issues.
Melanca Clark is a senior counsel for the Access to Justice Initiative at the U.S. Department of Justice, where she helps implement the Initiative’s efforts on indigent defense reform and improving access to civil legal services for people unable to afford a lawyer. She is also co-chair of the Employment Barriers Subcommittee of the Federal Interagency Reentry Council.