A court building in New Orleans Tom Bastin/Flickr Creative Commons

The city’s chief public defender discusses persistent hurdles to adequately defending the poor in court.

On September 3, Tina Peng, a lawyer in New Orleans’ much beleaguered Public Defenders Office, which is facing furloughs and layoffs due to poor funding structures, decided to take her case to the American public. In an op-ed she penned for The Washington Post, she did for her office what she often does for her indigent clients when appearing before judges: She plead for mercy.

Wrote Peng:

I went to law school to be a public defender. My frustration with our office’s persistent underfunding is not that it forces me to work long hours, represent numerous clients or make far less money than I would at a private law firm. It is that when we are constantly required to do more with less, our clients suffer. …

Our office represents 85 percent of the people charged with crimes in Orleans Parish but has an annual budget about a third the size of the district attorney’s. The American Bar Association recommends that public defenders not work on more than 150 felony cases a year. In 2014, I handled double that.

Upon reading this, New Orleans Criminal District Court judge Arthur Hunter summoned Chief Public Defender Derwyn Bunton to his court for a brief hearing to discuss Peng’s op-ed. Bunton affirmed everything Peng attested to in that court session, and now there will be a fuller hearing on the matter in November.

Asked what the Judge could do about the problem, Bunton told Citylab, “If there are problems, the judges’ powers within the system range anywhere from release of people from custody to halting prosecution until necessary funding is realized.”

“Constitutionally you cannot keep detaining people without counsel,” says Bunton. “And also under our own state interpretation of constitutional law, you can’t continue to prosecute someone without a defense.”

The Sixth Amendment ensures that criminal defendants have the right to a public trial without unnecessary delay and the right to a lawyer. The 1963 U.S. Supreme Court’s Gideon v. Wainwright ruling affirmed that the Constitution “requires us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

Public defenders offices carry out that mandate, but this is a mostly unfunded mandate, especially for cities. In New Orleans, the city put up a little less than $1 million for the public defender’s office, which accounted for about a sixth of its budget in 2014. The state chipped in a little over $2.4 million dollars, to make up a quarter of the budget. More than 41 percent of the budget is covered through fines and fees imposed upon defendants in a city where over 27 percent of residents, and 39 percent of children, live in poverty. Over half of black children in the city are impoverished, while 52 percent of black men in the city are unemployed.

(New Orleans Public Defenders 2014 Annual Report)

Louisiana is an outlier among states in terms of its reliance upon fines and fees associated with minor charges like unpaid traffic tickets to fund public defense services. This has subjected New Orleans’ court system to a federal class action lawsuit filed last week, which claims that judges do not appraise poor defendants’ abilities to pay these fines, and too often jails them when they don’t pay.

This puts the public defender’s office in the tough position of having to bankroll themselves on the backs of the poor clients they serve. In a letter he drafted in June alerting criminal justice stakeholders to the problem, Bunton said that they expect a $300,000 shortage from locally generated revenue, and that the state was cutting $700,000 from its appropriations for fiscal year 2016. For a fully functional office, and to avoid layoffs, Bunton tells Citylab that his office needs a budget in the $9 million range, conservatively. The office is running a crowdfunding campaign to raise capital.

After Katrina, the office enjoyed some stimulus from the philanthropic sector to supplement its needs, but that money has mostly dried up. In celebrating the 50th anniversary of the Gideon decision a couple years ago, former Attorney General Eric Holder released about $7 million in grants to keep indigent defense afloat. New Orleans benefitted from that for a spell, but none of this has amounted to a sustainable stream of funding that gives them certainty for planning and staffing purposes.

New Orleans doesn’t face these pecuniary problems alone—10 other public defender’s offices around Louisiana are also affected by state cuts; meanwhile, recent lawsuits in New York, Georgia, California, Washington, Idaho, and plenty other places have illuminated similar struggles. But given New Orleans’ unique “incarceration capital” status, it would seem that Louisiana would have a special mandate to make improvements to its public defense office. Meanwhile, Governor Bobby Jindal just approved $3 million for improvements to a golf course for the PGA Golf Tour.

Asked what the mental and emotional costs have been on the public defender’s staff, Bunton said that he’s brought in mental health counselors, one of the few budget items they’ve been able to maintain. They do trainings on trauma—“not just in how to recognize it in our clients, but also how to recognize it in ourselves,” said Bunton.

He says there is a debate among many public defenders about whether they can afford to get too emotionally involved in these cases, or if they have to “be a little dead inside,” to move forward with the work.  

“Some of us, including myself, have family members who are in or have gone through the criminal justice system, so we know firsthand what it does to a family, to a community, to our loved ones,” says Bunton. “I think we would probably do better if all of us remind ourselves that it’s ok to cry for our clients, every now and again, and more people in our system need to be crying.”

Top photo: Tom Bastin/Flickr Creative Commons

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