U.S. Department of Justice's Request for Research on Indigent Defense

The U.S. Department of Justice Interest in Indigent Defense

Maha Jweied The Department is interested in indigent defense because of a commitment by this Attorney General and this administration. The Access to Justice Initiative was formed two years ago this month, a reform to address both the access to justice crisis and the civil and criminal justice systems.

Our mission is to help the justice system efficiently deliver outcomes for individuals regardless of wealth or status, and a necessary component of our work is strengthening and improving indigent defense. How we do that is of course varied, but one important aspect is the research that's needed to identify solutions to indigent defense, and that's why the solicitation is so important. Being able to identify evidence-based solutions to the problems in delivery of defender services enables us to know exactly how to identify that the resources, the scarce resources that we have, and how to identify how to allocate them at all levels of government.

What is the Focus of the Solicitation from the National Institute of Justice?

Nadine Frederique Some of the most significant problems in delivery of services circle around access, which is why we chose access to defense services for adults and juveniles as areas of focus in the solicitation. So we know from surveys of the field that some jurisdictions, the timing of access is an issue, so whether you are guaranteed services of an attorney at pre-trial, at bail, preliminary motions, hearings, trial, there's a whole spectrum of points in the court system where there's differences across jurisdictions when they can be given access.

And we also know that certain states have different policies to determine what parts in the court system process you are allowed legally to have an attorney if you cannot afford one. And so those are some of the issues we see as very significant. We also see significant issues in staffing and resources that public defenders have, and so that's another reason that the second focus of the solicitation focuses around the team, the services and the resources that the public defenders are given to do their job effectively: expert witness access, social services for their clients, resources for their clients to be able to overcome some of their challenges, looking at a more holistic approach to defender services.

So those are some of the bigger—and of course there are many other issues that we could have focused on, and there are many other issues that are very important, which is why the solicitation also has an open-ended component. And so if there are other—I know there's a lot going on in the states right now in terms of reform efforts all across the country, and so states are definitely and jurisdictions are definitely encouraged to propose research that is relevant to their situation, evaluating their programs and their resources. And we just request that those applications be earmarked as "other" and also that they be strong, a strong research focus in what you propose to do in your jurisdiction.

Why is There so Little Research?

Frederique I think there's been little research on issues of access to legal services for the indigent because it's a complicated, multifaceted issue. Issues of access, it's about policy, it's about resources of public defender offices. In terms of research, there's also issues of access to data—collecting data; Is that data available? Linking data across courts, public defender offices, and institutions. So there's many issues involved in studying this empirically. Some have been able to do it to varying degrees of success, and in some areas of indigent defense there is empirical research. There's more empirical research on the effectiveness of private versus public versus contract attorneys. However, just issues of access, I think, because they're so multifaceted, have maybe been left alone a little bit too long. This is why we want to do the solicitation, so we can focus some attention to these front-end issues.

Why is This a Crisis?

Jweied Well, it's a crisis because of really the realities within the criminal justice system that far too many people proceed without attorneys or access to one even though it's a constitutional right, and really how it impacts all of the criminal justice system with respect to costs within the—actual monetary costs as well as costs with respect to human lives and how it really devastates families and individuals when they are caught up in a system that they don't understand and don't have access to legal representation or counsel.

What are the Department of Justice's Goals?

Frederique The National Institute of Justice has several goals with this solicitation. Obviously, we've been engaged in indigent defense research since the 1980s, and we want to continue that research, but we also want to move it forward. We want to take advances. We want to go in different places than we've been before and advance the field forward too so it can become more empirical, more evidence-based, and more rigorous research directed to this area.

So we want to engage social scientists and different stakeholders in research efforts and that indigent defense to gather more evidence about what works and to gather more evidence about some of the barriers to access. And we also want to confirm or evaluate or assess some of the assumptions in the field about some of the barriers and put some numbers behind those assumptions.

Why is This Important?

Jweied So, improving indigent defense first and foremost means that we as a nation can fill our constitutional promise to provide access to legal representation for those who are accused of a crime who cannot afford to pay. But there's more. It creates cost savings for communities. It creates safer communities, and it also helps us achieve our ideals with respect to making sure that all individuals have their human rights preserved and intact. The right to a fair trial that can impact someone's freedom or even could result in a sentence of death should not be dependent on whether or not someone has the money to afford an attorney.

Who Should Apply?

Frederique So, regarding the type of people who are eligible to apply for the solicitation, there are no restrictions in terms of size—so local jurisdictions, county, and state jurisdictions are all eligible to apply. We at NIJ find value in researchers pairing up with practitioners and practitioners pairing up with researchers in order to facilitate good, quality research. So I strongly encourage, if you're a jurisdiction who is considering submitting a proposal, pairing up with a local researcher at a university or a law school who can help you develop and partner with you to carry out an evaluation of your proposal.

How Can the Research be Applied?

Jweied The results of this important solicitation on indigent defense can really help guide the solutions that are to come with respect to indigent defense. So we know that through evidence-based research we can identify the solutions to the many problems that exist in indigent defense. And why that's important is because of the scarce resources that exist. So identifying what really does work, where the problems are, allows all levels of government to better allocate those resources. It also contributes generally to understanding of indigent defense and to understand precisely what works and the variety of approaches that are needed to consider solutions to these problems.

Frederique Well, NIJ is committed to this line of research, and we hope that looking at areas of access to justice will help us get a firm footing on some of the other important empirical research, so we are committed to engaging in research for indigent defense services in the future, and we're hoping that this research will provide a framework for us to get some cumulative knowledge and go next steps in access to justice and other resources for public defenders. We hope that there are some policy implications from the research that we will be able to use and offer to jurisdictions for their resources, and we hope that we'll be able to engage more with practitioners and policy makers in this field.