Overworked public defenders say they're being forced to take on cases under threat of jail time in what amounts to a criminal justice nightmare.
Derwyn Bunton sits in a New Orleans courtroom, scrolling through his cell phone and waiting for the judge to call his name. The lawyer is here on behalf of a client facing a second-degree murder charge, and he's been posted up for about two hours as Judge Robin D. Pittman deals with cases ranging from a young woman charged with conspiracy to distribute heroin to an 18-year-old trying to strike a plea deal and avoid being placed on the sex offender registry. Every defendant in the courtroom is African American, and almost all of them have requested that counsel be provided—a right guaranteed by the United States Constitution.
If the chief public defender in Orleans Parish is frustrated, he doesn't look it. As the head of the deeply underfunded and imperiled Orleans Public Defenders (OPD), he should be anywhere but here, handling a case with a charge so serious it demands an attorney who might give it his or her full attention. But Bunton has no choice.
After all, if he were to drop the case, the lawyer says he could end up in jail himself.
"I've been ordered to take five cases by the judges so far," Bunton tells me on the steps of the Orleans Parish Criminal Court.
In January, after years of budget reductions from the state and mounting caseloads, public defenders in New Orleans announced they would no longer take cases involving serious felonies—or alleged crimes where defendants face decades behind bars. The people working at the only public defense office in New Orleans just didn't have the resources to mount an adequate defense anymore. In the weeks since, when an indigent client charged with a serious crime has come their way, the attorneys have refused to take it on, cognizant that the alternative—accepting the case and not giving it their all—could deprive that client of justice.
You might think public defenders going rogue would force local and state officials to figure out how to repair Louisiana's criminal justice system, which is among America's most troubled. (As the New York Times reports, over eight in ten alleged criminals are represented by public defenders in the state.) But that didn't happen. There's been no action on the legislative level since January, while local judges have begun ordering the distressed public defense office—as well as some private lawyers—to take on cases anyway, under threat of contempt of court.
The result is a nightmare.
"Being threatened with jail time for being ethical is disheartening," Bunton says in his office across the street from the courthouse. "In a deeper sense, they're answering the question whether poor people deserve equal justice. To them, the answer is no, they don't."
As of Thursday, OPD had refused to take on 55 cases so far this year—almost all of them serious felonies that don't carry a life sentence (like armed robbery and manslaughter).
"By being overburdened, the little things that could make huge differences in a person's life gets missed, because you simply don't have time," explains Barksdale Hortenstine Jr., a staff attorney who's been with OPD since 2007. "You can't convince the district attorney to charge a person fairly. That pre-indictment moment can do everything for your case."
And somehow, it's about to get worse.
While OPD—and the entire New Orleans criminal justice system, for that matter—gets the majority of its funding from fees imposed on citizens, like traffic* tickets and fines, it also leans on support from the state government. But fees have been falling precipitously for several years now, and the state is facing a massive budget crisis after a bevy of tax cuts instituted by former Governor Bobby Jindal. The current doomsday budget under consideration by lawmakers would further cut public defense funds statewide by 63 percent; even a compromise bill could seriously decrease funding for defenders.
"There was never anything left to cut in the first place," Hortenstine says, his office crammed by mounds of case files he inherited from departed attorneys. "We need severe increases in funding to undo the damage that's already been done. People have sat in jail while they've lost their houses, their jobs, and become more likely to re-offend because of it. The idea of having less is just purposely or inadvertently causing a constitutional crisis."
Just a few days after they began refusing cases, OPD and the Louisiana Public Defender Board were sued by the American Civil Liberties Union. Alleging a violation of indigent defendants' Sixth Amendment rights, the ACLU placed the blame for the failures of the public defense system on Louisiana's reliance on a "user-funded" funding model. Across the country, similar lawsuits launched by the ACLU have forced states and localities to adequately fund indigent defense, and therefore fulfill their constitutional obligations.
When I visit on Thursday morning, almost every courtroom inside the imposing Orleans Parish Criminal Court is packed with people awaiting their fate under these obscenely tilted scales of justice. At first appearances, where defendants arrested in the past 24 hours have their initial interaction with the justice system, Judge Harry Cantrell oversees twelve cases, and most of the charges are for drug crimes, like ecstasy distribution and marijuana possession. Every defendant is given a sizable bond, in excess of $2,500—an amount that people who cannot afford an attorney of their own will almost certainly be unable to pay.
Of the twelve, the lone white defendant is the only one to have secured a private attorney. The rest are relying on demoralized, physically drained public defenders to save their lives.
When a pair of teenagers arrested for alleged carjacking and armed robbery stand up to face the judge and have their bond set, OPD attorney Mariah Holder informs the judge that their office is refusing to take the case. The judge waves her off.
"This is just their first appearance, we'll figure out the other matter later," Cantrell tells the court. Holder is unsure whether they'll actually be forced to take on the case, but for two people facing the possibility of a life spent mostly in prison, this was a less than encouraging interaction.
Down the hall, staff attorney Lauren Anderson is waiting on testimony from two arresting police officers, but they never show. This isn't unusual for Anderson, who spends much of her day either at court or tracking down clients in jail—a task that's become increasingly difficult over the past few months. Beginning last year, many inmates awaiting trial in New Orleans have been transferred far across the state as the city cuts staffing at local jails
"I don't think the lawsuit is a bad thing for this office," she tells me. "This isn't a cut and dry budget problem. This isn't just politician's fighting about money. These are people's constitutional rights. This is basic Founding Fathers issues here, and people want to treat it like it's equal to the funding decisions about LSU football."
Friday marked the 53rd anniversary of Gideon v. Wainwright, the Supreme Court decision that the right to an attorney requires states to provide lawyers for the poor. But the situation in Louisiana could not be more desperate. The Orleans public defenders are now waiting on a judgment of their own: whether 42 lawyers working 21,000 cases can truly be considered justice.
For the mostly poor people of color at the mercy of the New Orleans criminal justice system, that verdict will mean everything.
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*Correction 3/22: An earlier version of this article said the New Orleans legal system collects revenue from parking tickets rather than traffic tickets.