In many instances, federal legislative and executive priorities in criminal justice have only exacerbated many of the problems facing defenders and the communities they serve across the country.  Law enforcement and prosecution grants create more arrests, more cases, and more clogged dockets –seemingly with little public safety benefit.  And at their worst, the feds have created some of the most extraordinary and systemic miscarriages of justice that we see in the states (see, e.g., the FBI’s training of untold numbers of state crime lab analysts in faulty hair microscopy analysis).

Over the last decade, however, we have seen a handful of federal bills and programs that seek to serve the defender community, albeit in a limited capacity and nowhere on par with the kind of support provided to the many other elements of the criminal justice system. The most recent iteration of this is the reauthorization of the Justice for All Act (JFAA) – S. 2577, now before President Obama for his signature. A tireless effort by a coalition of advocates for victims, prosecution, defense and innocence programs helped push through what is likely to be the only criminal justice reform bill of the 114th Congress.  
First enacted in 2004, JFAA enhanced protections for victims of crime, provided support for the use of DNA and other forensics to solve and prevent crime, and provided safeguards to prevent and uncover wrongful convictions. The new bill reauthorizes many of these programs and also sets out new programs to support victims of crime.  Several reauthorized portions of the bill, as well as some new provisions, support defenders and convicted persons.  These provisions are set forth in additional detail below. (Note that although new funding authorizations may be at a lower level – and sometimes a much lower level –  than in the original law, in most instances, the new authorization is either equal to or greater than the amounts ultimately appropriated by Congress under the old law).

  • Section 10 – Improving the Quality of Representation in State Capital Cases.
    • This section reauthorizes the Capital Representation Improvement Grants and the Capital Prosecution Improvement Grants and reduces the authorization from $75 million to $2.5 million in 2017 escalating to $22.5 million in 2021.
    • Allows the Attorney General, upon a showing of good cause, to determine a fair allocation of the funding across the two grant programs. [This amendment was adopted to permit states to use funding to support more defender programs, as DoJ had previously interpreted the law to require absolute parity in spending on both prosecution and defense in capital cases).
  • Section 14  – “Effective Administration of Criminal Justice.”
    • Reinstates a previous requirement of the Edward Byrne Memorial Justice Assistance Grant (Byrne/JAG) Program that sets aside funds for states develop, and update annually, a strategic plan detailing how grants received under the program will be used to improve the administration of the criminal justice system.
    • Requires the Attorney General to provide technical assistance to states and local governments requesting support to meet their Sixth Amendment obligations and authorizes $5 million for the Attorney General to carry out the technical assistance required under this section (note that these funds, like all of those authorized by JFAA, must also be annually appropriated by Congress).

Further, several sections reauthorize and enhance DNA testing access and funding to support forensic science.  These include:

  • Section 8 – Reauthorizes DNA research and development grants at reduced annual levels (at $7.4 million for FY 2017 and $10 million for fiscal years 2018-2021). Also reauthorizes the DNA Identification of Missing Persons Grants at level funding.
  • Section 9 – Reauthorizes the Paul Coverdell Forensic Sciences Improvement Grants and changes the annual authorization from $20 million to $13.5 million in FY 2017, escalating to $23 million by FY 2021.
    • Requires forensic labs that receive these grants to be accredited or use grant money to become accredited (medical examiner’s offices and coroner’s offices remain eligible for funding even though they are accredited differently than forensic labs).
    • Increases the minimum amount each state receives (from 0.6|PERCENT| to 1|PERCENT|), which is meant improve availability of resources to rural and underserved areas.
    • Increases the percentage of total amount made available that will be allocated based on a state’s population (from 75|PERCENT| to 85|PERCENT|) and decreases the percentage that will be used for discretionary awards (from 25|PERCENT| to 15|PERCENT|).
    • Broadens the allowable uses of these grants to cover eliminating backlogs in additional types of forensic analysis including impression evidence, digital evidence, and fire evidence. Allows labs to use funding to train more forensic experts and to address emerging forensic science issues and technology.
  • Section 11 – Post-Conviction DNA Testing.
    • Eliminates the prohibition on a court granting an individual’s petition for post-conviction DNA testing if that individual had waived his or her right to post-conviction DNA testing as part of a plea agreement.
    • Permits defendants to apply for post-conviction testing even if they have already completed their sentence.
    • Requires the government to prepare an inventory of evidence related to the case and share the results of DNA testing with the applicant and the court. If the results exclude the applicant, then the DNA profile must be uploaded to the National DNA Index System (NDIS) to see if a match is generated.
  • Section 12 – Kirk Bloodsworth Post-Conviction DNA Testing Program.
    • Provides grants to states to help with the costs of such testing and increases the annual authorization by $5 million (to $10 million per year).
    • Relaxes the requirement that states must preserve all biological evidence to obtain grants through the program. Instead, states and local governments receiving funding must preserve all biological evidence in cases involving certain crimes of violence.
  • Section 13 – Establishment of Best Practices for Evidence Retention.
    • Directs NIJ to promulgate best practices for evidence retention within eighteen months of the bill’s enactment.
    • Requires NIJ to assist state, local, and tribal governments wishing to adopt the best practices.

You may also want to familiarize yourself with provisions of the bill relating to crime victim assistance and restitution, found in Sections 2 – 6.  Further, Section 7 contains provisions relating to the enforcement of the Prison Rape Elimination Act (PREA).


Those who follow these issues closely in Washington,  are, of course, anxiously awaiting more information about how the above mandates will be carried out by the Department of Justice under the new President-elect.  Regardless of what happens after January 20th, the fact remains that defenders continue to have access to only a fraction of the federal criminal justice funding received by the states or offered to other grantees. The DoJ does not have the authority to investigate systemic deprivations of the right to counsel.  And the need for a strong, well-resourced defense function is not part of the national conversation on criminal justice reform.   
In short, we know there is much left undone.  
So, finally, a plea:  While it is our job to keep you apprised of federal executive and legislative developments, we must hear from you.  We face an uncertain future and a new political climate concerning issues of crime.  We must be imaginative and inventive as we think about how to make public defense part of the ethos of criminal justice or other policy reforms. Protection of the Sixth Amendment is an issue that has progressive, libertarian, populist and conservative dimensions.  As we begin to think about new areas for executive and legislative change to support public defense, we must hear from you about your views, concerns and ideas relating to the federal government’s role in supporting and safeguarding the Sixth Amendment.  To get started, you can reach me at  I look forward to hearing from you.