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Federal Justice Grants Favor Prosecution, Law Enforcement Over Indigent Defense

A report by the Government Accountability Office (GAO) has confirmed what many criminal defendants too poor to afford an attorney have long suspected: While hundreds of millions in federal tax dollars go to support prosecutors, law enforcement and prisons each year, public defenders are left out in the cold.

Citing a nationwide survey on criminal justice funding, the GAO’s report on indigent defense found that police, prosecutors and corrections agencies received around half of the overall money appropriated by the Edward J. Byrne Justice Assistance Grant Program (JAG) – the federal government’s largest criminal justice subsidy – while less than 1% of JAG funds went toward defending the poor.

“Despite repeated calls from the legal community for improved funding for indigent defense, and even though Attorney General Holder himself has declared a ‘crisis’ in the right to counsel for the poor, this study shows that state and local governments continue to give justice for the needy short shrift when they divide up the federal dollars they receive,” said Virginia Sloan, president of The Constitution Project, a non-profit organization that seeks to reform the nation’s criminal justice system and strengthen the rule of law.

According to the GAO report, the U.S. Department of Justice distributed more than $2.8 billion in JAG funds between 2005 and 2010 to state, local and tribal governments. However, because indigent defense wasn’t “prioritized” by Holder until 2010, just one-tenth of 1% of the JAG money sent to local and tribal agencies, and only seven-tenths of 1% allocated to states, was spent on indigent defense to ensure criminal defendants’ Sixth Amendment right to assistance of counsel.

Meanwhile, 56.6% of JAG funds provided to local and tribal governments and 46.1% of the funds that went to states were spent on prosecution, law enforcement and corrections-related costs.

JAG recipients, according to a GAO survey, blamed this remarkable disparity on competing priorities and argued that overtime pay for police officers, prosecutors’ salaries and surveillance equipment were more important than indigent defense.

The GAO reported that one JAG administrator, who explained his city was laying off more than 30 police officers, decided to effectively disregard criminal defendants’ right to counsel in favor of law enforcement.

“Because there will now be fewer officers on the street to identify, report and respond to crime as it happens,” the GAO stated, “his jurisdiction gave priority to obtaining technology that would allow citizens to better report crimes as opposed to providing funding for indigent defense.”

Public defenders told the GAO that they believe their offices are underfunded partly because they aren’t part of the decision-making process for disbursing funds, and because they’re often unaware of their eligibility to apply for certain grants.

The GAO recommended that the DOJ’s Office for Justice Programs do more to ensure that JAG funds and other federal criminal justice grants are allocated for indigent defense, and to inform public defenders about grant opportunities.

Virginia Sloan said she wants more accountability and consequences for grant administrators who fail to apportion funds to defend poor criminal defendants.

“Most importantly,” she stated, “the federal government must tell the states and localities that they will not receive funding unless they distribute it more fairly between law enforcement and indigent defense.”

Sources: “Indigent Defense: DOJ Could Increase Awareness of Eligible Funding and Better Determine the Extent to Which Funds Help Support This Purpose,” Government Accountability Office, GAO-12-569 (May 2012);;

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