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Louisiana's Public Defender Crisis Is Leaving Thousands Stuck in Jail With No Legal Help

Many of the state's poor defendants are without a lawyer due to budget shortfalls, staff cuts, and impossibly high caseloads — and advocates fear it's only going to get worse.
Photo by Alex Brandon/AP

The entire public defender system in Plaquemines Parish, Louisiana, fits in a squat, white FEMA trailer — a remnant of the relief effort that followed the devastation of Hurricane Katrina.

The trailer is parked in a grassy lot along a commercial stretch about 30 minutes outside of New Orleans. The neon sign of a bail bond office flickers across the lot.

Like all public defenders, the Plaquemines Public Defenders Office, which is composed of two lawyers and an administrative assistant, is meant to represent defendants who cannot afford to hire a lawyer, fulfilling their constitutional right to legal counsel. In February the office announced that it was out of money and would be furloughing both lawyers and closing its doors, making it the first casualty of a public defender funding crisis that has been spreading across the state.


The Louisiana Public Defender Board (LPDB), which disperses state funding to local public defender offices, was ultimately able to provide $80,000 to the Plaquemines office to cover payroll and office supplies only until July, when the current fiscal year ends. But the office still lacks money for outside resources like investigators and contract attorneys to cover cases where public defenders have a conflict of interest. Defendants on those cases are moved to a wait list, which currently numbers about five in a parish of 24,000.

The wait list is far longer in other areas of the state, and many are sitting in jail without access to a lawyer.

"I have clients calling saying, 'Hey, I heard you're not going to be in business anymore. What am I supposed to do?'" said Matthew Robnett, the chief public defender in Plaquemines. "I tell them, 'Hopefully we will be, but be thankful you're not in jail when you get on the wait list.'"

In Louisiana — which leads the United States in incarceration rates and has the second highest exoneration rate per capita in the country, according to the National Registry of Exonerations — 85 percent of defendants qualify for a public defender. As of April, 33 out of 42 of its public defender offices are either refusing cases or maintaining a wait list in order to manage budget shortfalls, staff cuts, and impossibly high caseloads.

With the state scrambling to cover a $600 million budget deficit left by former Governor Bobby Jindal, significant funding increases are unlikely, and many expect the crisis to worsen before it gets better.


Insufficient Funds
The predicament stems from Louisiana's unique "user pay" system for funding indigent legal services. It is the only state that relies on court fees, collected mainly from traffic tickets, to fund the majority of local public defender budgets. Public defenders get about two-thirds of their overall funding from local revenues, the LPDB estimates, leaving them constantly guessing what their annual budgets will be.

"The way we're funded is unstable and unreliable and inadequate," said Jay Dixon, state public defender at the LPDB. "That will always be the problem."

Related: Gitmo for the Poor: States Leave Impoverished Inmates in Legal Limbo

Revenue from traffic violations has steadily declined over the past decade, with financial reserves for local public defender offices dipping from $18 million in 2010 to $6 million last year. As a downturn in the oil and gas industry exacerbates fiscal woes throughout Louisiana, state funds are increasingly hard to come by.

Public defender offices, many of them already overburdened and underfunded, have been hit hard. The office in the 15th Judicial District, which covers the parishes of Lafayette, Vermillion, and Acadia in southwestern Louisiana, lost more than half its staff from January to April of this year due to lack of funding. The diminished headcount means more cases that present a conflict of interest for the remaining staff, and there are about 5,200 on a wait list for a lawyer across those three parishes, including as many as 300 currently in jail.


'We're talking about the incarceration of poor black people. That's the crux of it.'

The Orleans Public Defenders Office in New Orleans, which handles 20,000 to 25,000 cases a year, stopped taking complex felony cases in January, prompting the American Civil Liberties Union to file a class action lawsuit against it and the state public defender board. A total of 348 cases have been refused there so far, and 106 cases remain on the wait list.

"Any kindergartner looking at our criminal justice system — particularly our system of public defense — can see it is unfair," the Orleans Public Defenders said in response to the lawsuit. "While this lawsuit is not necessarily welcomed, OPD welcomes reform. It is our hope this lawsuit leads to lasting reform and a more fair, more just criminal justice system."

The repercussions of service restrictions are being felt in other ways.

In April, a judge in New Orleans ordered the release of seven men on the public defender wait list who were held without access to an attorney for crimes that included rape, armed robbery, and murder, saying that lack of funding for their defense violated their right to due process. (He stayed the effect of his order pending appeal.) Last week, a group of civil rights attorneys filed lawsuits on behalf of nine defendants in two Louisiana parishes that have been held in jail for months without access to an attorney.

Still, some have challenged the need for additional public defender funding.


"All it would take to turn this around is for the state board to dedicate more of their current budget to the local offices instead of keeping it at the state level," E. Pete Adams, executive director of the Louisiana District Attorneys Association, said of the LPDB, which uses state funding to handle capital punishment and appeals cases on behalf of local public defender offices. The LPDB received close to $31 million in funding last year, and is on track to receive the same amount in the coming fiscal year.

Related: NYCLU: Justice in New York Is Available Only to Those Who Can Afford It

But it's unclear that a redistribution of state funds would effectively plug the holes of a public defender system that is primarily dependent on local revenues.

The LPDB released a budget plan in late April that would increase allocations to local offices from around 50 percent of total state funding to up to 65 percent. That translates to cuts at the state level, likely to capital defense and appeals funds — a move that Dixon says will still impact local offices.

The increase in direct funding "should help stabilize many of the districts that are in trouble," he explained. "But it's going to cause other problems."

Local offices may have to start paying for appeals cases that are now covered by the state board, or may have to fund capital defense cases on their own, which Dixon said could force other districts into restricted services mode. Robnett said the cost of a death penalty case would "bankrupt" a small office like his.


"When you're rearranging insufficient funds, you still have insufficient funds," said Dixon.

Decreased Capacity
In New Orleans, the defendant wait list has been slowly increasing since January, when Chief Public Defender Derwyn Bunton announced that his office could not take on new complex felony cases without additional resources. Staff caseloads were up to 300 a year per attorney, roughly twice the American Bar Association's recommended limit. The Orleans Public Defenders Office currently has 49 staff attorneys, including Bunton, and 10 investigators, down from nearly 80 attorneys and 20 investigators at the office's peak in 2011.

Over the past four years, the office's budget has declined from around $9 million to $6.2 million in 2015, which is about a third of the local district attorney's budget.

"It's not going anywhere," Bunton said of the wait list. "Even if funding comes we will be digging ourselves out of a hole…. We have to rehire and retrain to get our resources up to what we can handle."

'Part of your minimum right to counsel is more than just having a potted plant stand next to you in court. It's the ability to present an effective defense.'

The resource crunch in the New Orleans office has been made worse by mass inmate transfers from the local Orleans Justice Center to a facility hours away, Bunton said. Orleans Parish Sheriff Marlin Gusman began inmate transfers this year, which accelerated this month in response to a lawsuit by the Department of Justice charging that the conditions at the new $150 million jail are "unconstitutional," citing rampant violence among inmates and "alarmingly high" suicide attempts.


Over the past few months, more than 1,000 of the city's approximately 1,500 inmates have been transferred to facilities outside the parish. The bulk of them have been sent to a detention center in northeastern Louisiana, more than 250 miles from New Orleans.

"We don't have the resources at that sort of scale — we don't have the resources at all, and certainly not at 600 clients," said Bunton. "I can't afford to have staff lose a day to visit a client."

In New Orleans, as in many other places, flaws in the justice system affect black communities most acutely.

"We're talking about the incarceration of poor black people," said Nia Weeks, a lawyer who left the Orleans Public Defenders last year. "That's the crux of it."

In 2014, 87 percent of those in prison in New Orleans were black, compared to about 60 percent of the city's general population.

Those on the wait list have few options. Judges can appoint private attorneys to represent indigent defendants, but the Louisiana State Bar Association opposes such appointments and lawyers have pushed back. Defendants can opt for self-representation or try to raise money to hire a private attorney.

Related: A Decade After Horror of Katrina, New Orleans Police Brutality Still Remains

Without a decent lawyer, defendants are largely locked out from the client advocacy and mitigation work — such as evidence collection, sentencing negotiations with the district attorney, and bail reduction — that lawyers take on early in a case.


In the Plaquemines office, Robnett said he is unable to hire investigators to gather evidence on every case.

"I can't say for sure, but I might be more shaded to settle because we can't mount a good defense," he said. "Part of your minimum right to counsel is more than just having a potted plant stand next to you in court. It's the ability to present an effective defense."

Even things like incompetency claims for the mentally disabled or those with diminished capacity can slip through the cracks.

"To a layperson, you would think that if you can't understand what is going on, you should be considered 'incompetent.' Actually there is a whole process that has to happen," said Weeks. "A lot of people can't read or write," she went on. "Having an advocate there that understands all those things and can safeguard you… is really, really important."

Though Weeks is no longer a public defender, she noted that several former clients — all of whom qualify for a public defender — have come to her for legal aid since the crisis started rather than try their luck with the Orleans office.

Tina Peng, an attorney with the Orleans Public Defenders, wrote an op-ed in the Washington Post last year calling attention to the state's difficulty. A drop in her caseload has allowed her to begin taking a select number of clients off the wait list.

"One problem with the system here is when we let our clients suffer that much, it gives the message that their lives don't matter that much, that we don't value their constitutional rights," she said.

The ripple effects of a public defender system funded by court fees go well beyond the courtroom, advocates say.

"One of the consequences of a system that sort of bleeds money out of clients and client communities to operate itself is to really damage those communities trying to rebound," said Bunton. "These are largely African-American communities that have a decreased capacity to make a living."

"The years of chronic underfunding for the part of the system that is supposed to stand up and argue and be critical of programs and policies that expand this huge criminal justice net," he added. "That system has been down, if not plain out, for a long time."

Follow Lauren Zanolli on Twitter: @LaurenZanolli