Indigent defense short-shrifted in Byrne/JAG grants, says Constitution Project

Could/should Texas be spending more federal grant dollars to support indigent defense? And should the Governor's Criminal Justice Division continue to forbid using Texas' deepest well of federal criminal-justice grant funds for that purpose?

A press release Grits received via email from the Constitution Project argues that a greater proportion of federal grant money aimed at criminal justice should go toward providing lawyers for the poor: 

WASHINGTON, D.C. -- Almost none the money the federal government provides to state and local governments for justice system improvements goes to helping to defend poor people, a new study shows. The report bears out claims that supporters of indigent defense have made for years that there is an enormous disparity between governmental financial support for prosecutors and defenders.

According to a Government Accountability Office (GAO) report released yesterday, almost half the money block granted to the states under the Byrne Justice Assistance Grant Program grants goes to fund law enforcement and prosecution activities, with less than one percent being used for public defenders or other private lawyers appointed to assist those who cannot afford legal representation on their own.

"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 (TCP), a bipartisan legal watchdog group.

The GAO report says that the Department of Justice (DOJ) distributed more than $500 million to state and local government under the Byrne JAG program in five of the six fiscal years between 2005 and 2010. Less than one-tenth of one percent of the money sent to local governments, and only seven-tenths of one percent of the money allocated to the states, was spent on indigent legal defense, the report shows. In contrast, 54% of the funds DOJ sent to localities, and 38% of the funds sent to states, were spent on law enforcement and prosecution activities.

The report indicates that among the reasons that indigent defenders do not receive more funding is that, most of the time, they are not part of the decision-making process that disperses the funds, and many are not even aware they are eligible to apply for them. Nearly two-thirds of the public defender offices responding to a GAO survey said they did not know that they were eligible for federal funding, and 31% said they lacked the knowledge or the personnel to complete the application process.

In responding to the GAO report, the DOJ indicated it was taking steps to make public defenders more aware of their eligibility. ...

TCP released a comprehensive bipartisan report on problems in the indigent defense system, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, in 2009.

A copy of the GAO report is available online.

Regrettably, GAO's main recommendation is pretty weak:

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.

The feds could and should do more to balance the equation than just make grantees "aware." Whenever the feds specify that a proportion of grant money be spent on indigent defense, they do it. From GAO:

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.

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.

Clearly grantees will spend money on indigent defense when the feds tell they they have to, but prioritize law enforcement and prosecution spending nearly exclusively when left to their own devices.

As it happens, Grits has quite a bit of history with Byrne grants in Texas, spending five years on a campaign to convince Texas to shift its federal block-grant spending away from Tulia-style drug task forces, including authoring two public policy reports on the subject (see here and here). Initially, after the drug-task forces were de-funded in 2006, roughly half the Byrne grant money began to fund the Governor's new border security projects while much of the rest went to fund things like drug courts, diversion programs and frequently law enforcement equipment. (Here's an example of Byrne/JAG grants from a recent quarter to give you an idea of how the money is spent in Texas today. See the full list (pdf) of the various grant funding streams administered by the Governor's Criminal Justice Division.)

As drug task forces began to shut down - either from scandal or from counties' fear of increased liability as their insurers demanded higher premiums in the wake of the Tulia and Hearne episodes - we actually sent out blank grant applications to counties when I was at ACLU of Texas suggesting they apply for money to use for other, more constructive things, particularly drug courts and diversion programming. So I understand and agree with the strategy of making applicants aware of their eligibility, but that's not enough in and of itself. If Congress and/or DOJ want Byrne/JAG money spent on indigent defense they may need to require some minimum proportion go to that purpose.

Presently most indigent defense grants in Texas are funneled through the Texas Indigent Defense Commission grant programs, which are financed (at lower levels than Byrne grants) largely through the federal Office of Justice Programs. If Byrne grant money could also be used to launch indigent defense programs, I bet a lot of Texas counties would apply for that purpose.

Unfortunately, on the website of the Texas Governor's Criminal Justice Division is a "Guide to Grants" (pdf) describing the various funding streams doled out by that office, which specifically excludes "legal services for adult offenders" from allowable grant expenditures. Here instead are the areas the Justice Assistance Grants in Texas are designated to fund:

• Border Initiatives
• Court Programs (except Drug Courts)
• Data/Information Sharing Systems
• Drug Court - Adult
• Drug Court - Family
• Drug Court - Juvenile
• Equipment-Only Purchases
• Gangs – Adult
• Investigation
• Prosecution
• Substance Abuse
• Training
• Technology

Indigent defense is notably absent from the list. So even if DOJ increases the Governor's Criminal Justice Division "awareness that funding can be allocated for indigent defense," unless that restriction is changed it won't boost the proportion of Byrne/JAG grants going to pay for it in Texas. Larry Akey at the Constitution Project says that "it’s Texas policy" and not any federal restriction "that prevents them from using Byrne-JAG for indigent defense." He wrote in an email that:

Indigent defense has long been an approved use. Starting in 2010, the DOJ has stated explicitly in  application materials that indigent defense is an appropriate use.  For example, in 2012, the Byrne JAG state solicitation indicates:
 
“Another key priority area is ensuring that justice is truly done in the criminal justice system is support for indigent defense. BJA continues to encourage states and SAAs to use JAG funds to support the vital needs of the indigent defense community. Attorney General Holder has consistently stressed that the crisis in indigent defense reform is a serious concern which must be addressed if true justice is to be achieved in our nation.”

If that's accurate, it's Governor Rick Perry's Criminal Justice Division policies, not federal law or regulations, keeping counties from applying for Byrne/JAG money for indigent defense programs.

Grits contacted the Governor's Criminal Justice Division on Friday to ask why that rule is in place, but after an email query and leaving a message with a receptionist did not receive a return call by the end of the day. I also asked Jim Bethke from the Texas Indigent Defense Commission about the restriction. He said he knew nothing specifically about Byrne/JAG grants, but dashed off a quick note to say "CJD has been supportive of various initiatives we have brought to them over the years.  Travel funds for county officials to attend indigent defense travels, collaborations on veteran defender programs, and I’m certain there are other things too. And more importantly than the 'CJD' funds, the Governor has supported the growth of indigent defense appropriations for our agency."

Even if the Governor has been supportive of indigent defense funding from the state budget - and that's no small credit to him in these trying fiscal times - I bet there are more than a few county commissioners from both parties (at least those whose counties don't get Border Star money), who would like to see federal and state grants focused more on basic statewide needs like improving indigent defense and less on a handful of often thinly populated counties along the border.

For example, in one recent quarter, Webb County (Laredo) received roughly $242,000 for a drug court program plus $303,000 in JAG money under Operation Border Star. The same quarter, much smaller Starr and Maverick Counties received $279K and $282K, respectively, under Operation Border Star. By contrast, just as example, Lubbock County the same quarter received three grants for specialty courts totaling roughly $211,000. Jim Hogg County, by comparison, with a total population of less than 5,000 people, received $233,646 that quarter for a "Major Crimes Unit." A lot more people live in Lubbock County than Webb, much less Jim Hogg, for heaven's sake, but because border security has been prioritized over indigent defense, they receive less federal grant money. And that doesn't even speak to the enormous pots of state money from the general fund the Governor distributed along the border on top of this federal pork.

It's possible the timing is fortuitous to attack this disparity in the distribution of Byrne/JAG grants. These are block grants distributed at the discretion of the Governor. But the Governor has likely gotten all the political mileage he can out of his border security message (it didn't do him much good, for example, in the presidential primaries), especially now that economic malaise and the Obama Administration (or do I repeat myself?) have functionally combined to reduce the illegal immigration deluge Perry decried with such anguish in his 2006 and 2010 campaigns. Indigent defense is something virtually every county is struggling with, and this might be a good moment for the governor to pivot on this question, much as he did in 2006 to eliminate Byrne/JAG funding for drug task forces, a move which many saw as flying in the face of his "tough on crime" image.

Finally, on a seemingly tangential yet pivotal, related subject, none of that will matter for Texas counties which can't get 90% of their old case dispositions inputted into the state's data system by September 1. These are Byrne/JAG funds are precisely the grants the Governor's Criminal Justice Division said they would stop doling out to counties that didn't begin reporting case outcomes. So border counties, in particular, had better start getting their ducks in a row. Here are the rates of case disposition from border counties recorded with DPS according to data released when the Governor's office announced the new data-entry requirements:

Brewster: 57%
Cameron: 43
Culberson: 28
El Paso: 81
Hidalgo: 73
Hudspeth: 2
Jeff Davis: 25
Kinney: 54
Maverick: 30
Presidio: 20
Starr: 19
Terrell: 27
Val Verde: 69
Webb: 30
Zapata: 3

Source: DPS (pdf)

So some of these counties - not to mention more than a few others around the state - may become ineligible for Byrne/JAG money after September 1. If that happens, the Governor should push to remove the restriction on funding indigent defense with JAG funds and use freed up money to finance the same mission being promoted at the Indigent Defense Commission. The Governor has said many times that defending the border is the feds' job and he's spending mind-boggling sums there in Texas resources and manpower to do a job the feds won't do. Well they're doing it now. It's time to declare victory and repatriate those resources back to Texas' domestic needs, letting the rest of the state benefit more proportionally from the federal tax dollars they send to Washington. Indigent defense is something virtually every Texas county struggles with. Why not remove that requirement and focus some portion of Byrne/JAG grants on indigent defense projects, just as the GAO and the Constitution Project say other states have done?

Either way, the Governor's Criminal Justice Division should change its rules to eliminate the ban on JAG grants for "legal services for adult offenders." There are no shortage of worthy programs to finance, and the maximal emphasis on border grants, especially to the smallest counties, has gone on well beyond the point where increased utility justifies the cost.