“Take a number.”
Though rarely pleasant words to hear, you tolerate them from a teller at the DMV or your butcher the day before the Fourth of July. They are not words you would ever expect to hear from your attorney if you have been accused of a crime. But that’s essentially what the New Orleans public defenders’ office in Louisiana has begun telling arrestees this week, as funding shortages and staff attrition have forced the office to place new clients on a waiting list for representation. 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. Yet, these 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.
This is why the ACLU and the ACLU of Louisiana yesterday filed a class-action lawsuit against the New Orleans public defender’s office as well as the Louisiana Public Defender Board for failing to abide by defendants’ Sixth Amendment right to legal representation.
But this 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 impending downfall of Louisiana’s public defender system is both ordinary and extraordinary. It is ordinary in that all too many states fail their constitutional obligation to provide competent representation to people who cannot afford an attorney. 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. Each of these dysfunctional states is dysfunctional in its own way.
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.
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This is more than an abstract concern. Several district defenders have openly admitted asking local law enforcement to write more tickets to keep their offices afloat. This is because over two-thirds of the funding available for public defense comes from fees on traffic tickets. If this transgression seems mild, keep in mind that most Louisiana traffic offenses — yes, like speeding —carry up to 30 days jail time. Other districts have attempted to close the public defender’s budget gap by requiring that defendants awaiting trial cannot be released until they pay their public defender’s $40 application fee. Defendants in these districts may be forgiven if they have difficulty reckoning who their public defender works for: them or the district attorney’s office.
Just as Louisiana’s “user-funded” system leaves public defenders no choice but to risk jailing their clients to earn revenue, it places them at direct odds with reforms aimed at reducing the prison population. District defenders across the state have blamed funding shortages in part on their local prosecutors’ increased use of diversion, in which the prosecution agrees to dismiss the charges if the defendant completes a treatment plan. Diversion is increasingly popular for avoiding unnecessary convictions and incarceration. But the public defender does not collect a fee if her client is successful. She therefore has a powerful incentive to avoid diversion when her job is at risk. In a state with the highest incarceration rate in the world, this is inexcusable.
The solutions to Louisiana’s public defender calamity are simple, if by no means easy. The legislature must commit to fully funding its public defender office in New Orleans and across the state. Clients can no longer bear the burden, and they must never again be told to “take a number.” This requires hard choices in a state facing a massive budget deficit. But if Louisiana cannot afford to defend, it cannot afford to prosecute.