Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
The real target is the Louisiana state legislature.
If you’re charged with a crime but can’t afford a lawyer, then a public defender is often your best hope. In New Orleans, where both crime and income inequality rates are among the highest in the nation, that’s a not uncommon problem. So when New Orleans public defenders recently started refusing certain felony cases due to a budget shortfall, the stakes were already high.
Now the American Civil Liberties Union of Louisiana has filed a federal class action lawsuit against the Orleans Parish Public Defenders office over its work stoppage. The complaint, filed January 14, argues that by refusing to take certain cases, the OPD is violating the 6th Amendment of the U.S. Constitution, which guarantees criminal defendants the right to a lawyer, as well as the 14th Amendment, which guarantees due process and equal protection under the law.
“With every hour without an attorney, you may forever lose invaluable opportunities to build your defense,” said Brandon Buskey of the ACLU’s Criminal Law Reform Project in a statement. “The damage to your case can be irreparable.”
While OPD chief Derwyn Bunton is named in the complaint, along with the Louisiana Public Defender Board’s James ‘Jay’ Dixon, the ACLU’s real target here is the state legislature, which has long under-funded these services. The lawsuit argues that Louisiana has left OPD with no option but to supplement its budget with court fees and fines, mainly from traffic tickets. This is an “inherently unreliable” system, reads the complaint, because funding becomes “captive to arbitrary factors like how many highways pass through a district, the degree to which local law enforcement prioritizes traffic enforcement, or the extent to which the district attorney relies on pretrial diversion.”
As of January 19, OPD has refused roughly seven cases, Bunton tells Citylab. Those defendants are now on waiting lists, their hearings delayed. Three of these defendants—Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas Brown—are named as plaintiffs in the ACLU’s suit, and are sitting in jail hoping a lawyer will materialize. They’re all accused of felonies and face long sentences. Shaw, who’s 48, faces up to 99 years in prison if convicted on armed robbery charges. He is unemployed, as is Yarls, 51, and neither can cover their bail ($75,000 each). Brown, 44, works for a temp service and can’t post his $25,000 bail, either.
Meanwhile, OPD is searching for its own defense attorney. As of January 19, the office hadn’t responded to the ACLU’s complaint because it’s trying to find the resources to figure out how to reply.
“We don’t have time to represent ourselves and we also don’t have the money to hire a lawyer,” says Bunton.
While examining OPD revenue sources last April, Bunton saw that its state allocation for the coming fiscal year would be $700,000 less than normal. He alerted the public to the situation the following July. Following a number of ultimately unsuccessful public fundraising campaigns to bring the office to parity, Bunton testified before a local judge about the OPD’s compromised position. The judge asked how OPD had ever been able to balance its budget based on such unreliable funding sources.
“Very carefully and unpredictably, is the way to put it,” Bunton answered.
For all of the bipartisan bluster around criminal justice reform, there’s been little discussion about how to solve the problem of administering indigent defense. Most of the reform talk focuses on reducing the incarceration rate, and yet there are few better ways to stop the bloating of prison populations than by making sure adequate legal resources are available to the accused. Barry Scheck, a legal professor at Yeshiva University's Benjamin N. Cardozo School of Law in New York City, explains the situation succinctly in an article he wrote for the American Judicature Society in 2013:
There is no area of criminal justice reform that has made less progress over the last century or is more significant for improving the system than the right to counsel. Without adequate counsel for the poor one cannot even begin to effectuate meaningful solutions to the debilitating problems posed by mass incarceration, over- criminalization, and racial bias. … But indigent defense remains the neglected stepchild of the criminal justice system. It lacks a natural base, a core constituency with legislative influence—poor people charged with crimes, often disenfranchised by criminal convictions, and disproportionately from racial minorities, have limited political power in the first place. And there is a vicious cycle at work as well—the worse the representation of institutional defenders and court-appointed counsel, the less the community wants to rally for a larger defender budget or higher counsel fees. Nothing erodes respect for our criminal justice system more than the widespread conventional wisdom that one is better off being rich, white, and guilty than poor, black or brown, and innocent.
Scheck, who testified on this matter along with Bunton last November, told Orleans Parish Criminal Court Judge Arthur L. Hunter, Jr. that the judiciary process is the only one that can solve this problem. State legislatures currently are responsible for public defender systems and how they’re funded, but have historically dedicated far more funds for district attorneys. State budgets, in other words, prioritize prosecution and conviction. Scheck predicted in his 2013 article that lawsuits like the ACLU’s, declaring “systemic ineffectiveness,” would soon start trending.
One such lawsuit was settled that same year, in Florida, where the felony caseload teetered around 400 per public defender (the American Bar Association recommends that a public defender carry no more than 150 felony cases in a year). In 2003, the Florida state legislature had adopted a statute prohibiting public defenders from refusing cases based on a lack of funding or excessive workload. The Florida Supreme Court, however, ruled in 2013 that public defenders could render themselves unavailable for work if they could show that there would be "a substantial risk that representation of [one] or more clients will be materially limited by the lawyer's responsibilities to another client."
In Missouri, the director of that state public defender’s office threatened legal action last August over its severely under-funded mandate to represent indigent defendants. The office requested $10 million from the state to bolster its $38.4 million budget.* Perhaps Gov. Jay Nixon can come up with more than that now that the NFL’s Rams will no longer need the $1 billion stadium he’d been planning.
Similar sagas around funding public defense have played out in Fresno County, California (where lawyers were taking as many as 700 felony cases annually), and San Bernardino County, California. In New York, the state fought litigation aimed at its public defense funding for seven years before finally settling in 2014. The ACLU, which brought that suit, won the following reforms under the settlement, which:
- Requires New York to hire sufficient lawyers, investigators and support staff to ensure that all poor criminal defendants have lawyers with the time and support necessary to vigorously represent the defendant.
- Provides for the setting of caseload standards that will substantially limit the number of cases any lawyer can carry, thereby ensuring that poor criminal defendants get a real defense.
- Requires New York to spend $4 million over the next two years to increase attorney communications with poor criminal defendants, promote the use of investigators and experts, and improve the qualifications, training and supervision of lawyers representing indigent defendants.
Bunton has been in touch with a number of public defenders in offices that have already gone through such lawsuits, as well as a few others that are on the cusp. The one consistent message he says he’s received from all of them: “Do your best.”
One public defender he consulted was able to find humor in the fact that the public’s right to a lawyer is found among the first ten amendments of the U.S. Constitution, the building blocks of democracy.
“They didn’t even get rid of slavery” in that Bill of Rights, says Bunton, “but they gave us lawyers.”
*CORRECTION: This post has been updated to reflect that the public defender’s office has requested $10 million to bolster its budget. It has not received it.