Taking aim at Louisiana's "chronic underfunding" of its public defender system—which has forced at least four parishes in the state to create "waiting lists" for appointed counsel—the American Civil Liberties Union and the ACLU of Louisiana filed a class-action lawsuit Thursday evening on behalf of criminal defendants in Orleans Parish who are unable to afford an attorney.
"So long as you're on the public defender waiting list in New Orleans, you're helpless," said Brandon Buskey, staff attorney with the ACLU's Criminal Law Reform Project. "Your legal defense erodes along with your constitutional rights."
What's more, he added in an op-ed published Friday, "The people the public defender is making wait in line are most at risk in our justice system: usually poor, often a person of color, and facing severe sentences. [T]hese are the people who most need the public defender's help investigating the state's case against them and quickly uncovering favorable evidence before it is lost."
Or as columnist Jarvis DeBerry wrote for the Times-Picayune on Friday: "According to the old saying, justice delayed is justice denied. Similarly, representation delayed can be representation denied. The longer each man is denied counsel, the less effective that eventual representation is likely to be."
"Most critically," the lawsuit claims, those people placed on a waiting list "face an unduly heightened risk of prolonged and unnecessary pretrial detention."
The Orleans Parish public defender's office created its waiting list because it is running out of money to pay its attorneys.
In addition, according to the New Orleans Advocate, the office "had warned for months that it would begin to refuse clients accused of serious felonies, and it began doing so on Tuesday. At least seven individuals, three of whom are named plaintiffs in the lawsuit, have been affected thus far."
As for why the office is running out of funds, Buskey explained:
[T]his is not a problem of the public defender’s making. It is the result of the state of Louisiana’s stubborn refusal to fund its public defender system adequately. And New Orleans is not alone. Fifteen of the state’s 42 defender districts have been driven to similar desperation, attempting to stave off insolvency with measures like firing staff attorneys and investigators, hiring freezes, and waiting lists. The state public defender board, which oversees the defender districts, has predicted that the system will collapse by the end of the summer, when most districts will simply run out of money.
The problem isn't limited to Louisiana, he pointed out. "States from New York to Florida, from Mississippi to Missouri, and from Idaho to California have all faced severe public defender crises in recent years due to legislative neglect," he says, though he notes that "each of these dysfunctional states is dysfunctional in its own way."
However, Buskey continued, "Louisiana is extraordinary in that the primary source for public defense funding comes from fees defendants must pay if found guilty of a crime. That means public defenders can only guarantee their salary if enough of their clients are convicted of crimes. Acquittals are bad for business. Other states impose such fees, but only Louisiana requires its public defenders to feed off their clients' guilty pleas to survive."
By relying such a funding scheme, the ACLU says, the state of Louisiana has imperiled plaintiffs' Sixth and Fourteenth Amendment rights to due process, equal protection, and competent representation.
"Louisianans placed on a waiting list for counsel are unconstitutionally denied meaningful access to the justice system, which in turn will force many to languish indefinitely in jail without any means to challenge their arrest, their detention, or the accusations against them," the ACLU declares. "The public defender's inability to represent clients will further clog an already overwhelmed, unstable judicial system."