Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
The city and state are unable to fund public or private defense attorneys for New Orleans courts. Meanwhile, citizens sit in jail.
Public defenders in New Orleans stopped taking complex felony cases in January due to depleted resources—the result of Louisiana’s poor funding formula for services to aid those who can’t afford lawyers. Louisiana is bound by both its state constitution and the U.S. constitution to provide these services no matter what. That obligation has been compromised, however. Since the public defenders stopped taking these cases, judges have been assigning them out to private attorneys. Now, the private lawyers are looking to pull out of these cases, as well.
What should happen with the people who’ve been sitting in jail for months— some of them years— because there are no lawyers available to them? They should be released, says Pamela Metzger, a Tulane Law School professor and one of the private attorneys assigned by a New Orleans judge to represent indigent clients. On March 29, she filed a motion with the New Orleans criminal district court asking that seven people currently in custody awaiting trial be set free because appropriate legal representation cannot be provided to them by the city.
“None of our memories get better with time, so what you have are people sitting in jail for months, weeks, and sometimes years without significant progress being made on their cases,” says Metzger. “You have the very difficult questions here of what does this do to public confidence in our criminal justice system, and what does it do to the public perception of our own capacity to govern and be governed in a nation of law?”
Metzger was originally appointed by the court to ensure that the seven defendants’ due process rights were protected. The judge then assigned private attorneys to those defendants at Metzger’s request. But those court-appointed private attorneys are now turning to the judge to request compensation for their work. Some have filed motions asking to be removed from their assigned cases altogether.
All of this stems from Louisiana’s screwy funding formula, which forces public defenders offices to finance themselves, largely with funds from traffic tickets and court fees. This revenue scheme has been a nightmare for public defenders to plan around and operate with. The ACLU filed a lawsuit in January challenging this funding mechanism, charging that it disproportionately burdens those of low income.
The lawyers have withdrawn from these cases to make sure the state knows that the costs of representing poor defendants can’t be passed on to them just because the legislature can’t get its budget together.
As explained in the March 29 court filing:
Petitioners’ lengthy incarcerations, without the assistance of counsel, are the direct result of the Louisiana legislature’s persistent and catastrophic failure to provide adequate funding for the right to counsel as guaranteed by the Sixth Amendment to the United States Constitution and by Art. I, § 2 of the Louisiana Constitution, and Art. I, § 13 of the Louisiana Constitution, which mandate a “uniform system for securing and compensating qualified counsel.” Because of this failure, Orleans Public Defenders was unable to provide Petitioners with counsel qualified to their respective cases. ...
In 2016, systemic failures across the state demonstrate that the Legislature has, once again, failed to provide adequate funding for indigent defense. The Legislature has thereby deprived criminal defendants of their constitutional rights and has plunged local courts into chaos. …
Pursuant to Citizen, this Court cannot compel private counsel to represent Petitioner unless the Court can first identify a source of funds to pay counsel’s overhead and out-of-pocket costs. Because no such funds are available, nor are such funds likely to become available, the prosecution of this case will remain at a halt, indefinitely prolonging Petitioners’ uncounselled incarceration. Accordingly, this Court must release Petitioners.
Citizen refers to the 2004 case State v. Citizen, in which Louisiana’s supreme court ruled that “the [state] constitution explicitly places the duty of providing a working system for securing the representation of indigent defendants squarely on the shoulders of the legislature.” It also held that any prosecution of indigent defendants must be halted if that system isn’t working. That’s essentially where things stand with the seven defendants named in the March 29 court filing. The public defenders office has rejected more than 100 other cases due to funding problems, all of which could be affected by this impasse.
The lawyers withdrawing from these cases can’t afford to do the substantial work it takes to build a suitable defense on their own dimes. Some of the defendants in custody are in there on armed robbery charges, which require a considerable amount of investigation, and that doesn’t come cheap.
“A lawyer might want to check forensics, maybe for gunshot residue, or you might need DNA testing,” Metzger tells Citylab. “In all of those instances, those things cost money. Engineers don’t build bridges for free, and you can’t make lawyers do this for free, or ask them to spend out of their own pocket for overhead and costs.”
Defendants are then stuck with the problem of unequal and inadequate protection under the law, which is a violation of the Sixth Amendment of the U.S. Constitution.
The state of Louisiana, meanwhile, is in a tough position economically to respond, given that it was left with millions of dollars in debt by former Governor Bobby Jindal. New Orleans’ Chief Public Defender, Derwyn Bunton, alerted the state last summer that his office was not going to be able meet its financial obligations due to lack of funding. The office has been stuck in a hiring freeze and lost a few senior attorneys since that alert.* Bunton told Nola.com this week that his office’s budget standing hasn’t improved, with new Governor John Bel Edwards proposing to cut public defenders budgets by 62 percent across the state this year.
American Bar Association president Paulette Brown blasted the governor in a letter she sent to him on March 30 on behalf of the organization:
“Cutting nearly 62% of the public defense budget would exacerbate the current workload problem, threatening mass constitutional and ethical violations, as well as likely increasing wrongful conviction and mass incarceration,” wrote Brown. “It also would require additional service restrictions on a scale unprecedented in the history of American public defense.”
But the state legislature has been aware of this crumbling situation for a while now. Louisiana Public Defenders Board Chair Jay Nixon predicted in 2014 that dozens of public defenders offices across Louisiana would have to start restricting services if new funding wasn’t made available. The following year, 12 public defenders offices were declared financially insolvent, including those in New Orleans and Baton Rouge.
In fact, just this week a Baton Rouge judge halted prosecution of a high-profile drugs and racketeering case because public defenders lacked the resources to represent the defendants. Prosecutors in that case have fired back that the public defenders are “manipulating” the funding crisis. This despite the fact that there has never been a point in history where public defenders have received the same amount of money from the state as prosecutors.
As for the people sitting in custody while all of this plays out: “We best hope that we have the right people sitting in jail,” says Metzger. “Every day is not just a day that a potentially innocent person is sitting in jail—and all of these people are presumed innocent—but it’s also a day when the victim isn’t getting any justice.”
*CORRECTION: An earlier version of this story stated incorrectly that the New Orleans public defenders office laid off staff members. In fact, they have instituted a hiring freeze.