The GAO report acknowledges that money-strapped states across the country have been quick to put indigent defense on the chopping block in state and local budgets, but then use federal grants to offset spending cuts to law enforcement and prosecutors. Funding only one part of a “system,” police or prosecutors, creates problems. Prosecutors complain that funding only police creates workload problems. When public defense systems are underfunded, our legal system makes mistakes that can lead to injustice, costly delays, appeals, wrongful convictions, and the chance that the true perpetrator of a crime will continue to roam free.


These findings are particularly disturbing because, of the criminal justice activities these federal grants support, the right to counsel is the only one enshrined in the U.S. Constitution. States and localities should use federal money to help them meet their federal constitutional responsibility to provide meaningful, competent counsel for those too poor to afford a lawyer. They should not widen the gap of a funding disparity that already heavily favors law enforcement and prosecutors.
In fact, The Constitution Project’s National Right to Counsel Committee’s 2009 report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, called upon the Justice Department to ensure that federal grants to state and local governments support indigent defense at a level substantially equal to prosecutors. The GAO report reveals that we are not even close to that ideal.
Recognizing these dire findings, the report provides a path towards increased fairness, accuracy and effectiveness in federal grant allocations. Simply including indigent defense providers in the conversation is a place to start. Looking at a subsample of those grant recipients who responded to the question, the GAO’s report reveals that when indigent defense providers are excluded from state and local planning for federal money, which is most often the case, their share averages about 2 percent. In stark contrast, when indigent defense providers had a seat at the table, their share of federal money increased tenfold, averaging about 22 percent of a state’s or locality’s federal grant money. Perhaps realizing this, the Justice Department wisely uses this year’s grant application materials to encourage states to bring all criminal justice stakeholders into the strategic planning process, including indigent defense providers.
Unfortunately, the culture against using criminal justice grants for indigent defense may be too ingrained for this encouragement to be truly effective. For instance, in Texas, the guidelines for using federal grants exclude their use for adult legal services, despite the fact that federal law specifically allows states to use grants for this purpose. To break through this resistance, a critical next step is passage of the Justice for All Reauthorization Act introduced by Senator Patrick LeahyPatrick Joseph LeahyOvernight Energy & Environment — Presented by the American Petroleum Institute — Democrats address reports that clean energy program will be axed Overnight Health Care — Presented by Carequest — Colin Powell's death highlights risks for immunocompromised On The Money — Democrats tee up Senate spending battles with GOP MORE (D-Vt.), which would mandate strategic planning for federal criminal justice grants. This provision would ensure that indigent defense providers have a voice in any state or locality seeking federal grants. With all criminal justice stakeholders working together, federal funding can be used more effectively and more fairly.
By giving those who provide indigent defense a seat at the table, and thereby access to a fairer share of federal criminal justice grants, we can not only help ensure state and local governments live up to their constitutional obligations, we can help create a more accurate, more efficient criminal justice system, which will keep our communities safer.
Johnson served for nearly forty years as a county prosecutor in Anoka County, Minnesota, and is a former president of the National District Attorneys Association. He co-chairs The Constitution Project’s National Right to Counsel Committee.