Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
A judge has ruled that the constitutional rights of seven men held in jail for violent crimes have been violated because the state can’t afford defenders.
A New Orleans judge has approved the release of seven people who’ve been incarcerated while awaiting trial—some for well over a year—because the city was unable to secure lawyers to represent them. The inmates had been stuck in jail in part because they had been declared indigent, meaning they didn’t make enough income to afford an attorney. The city’s public defenders are normally the attorneys who would represent indigent clients, but they began withdrawing from certain cases in January essentially because they ran out of money.
The Louisiana legislature is responsible for funding public defenders services. However, instead of funding these services with a reliable stream, state lawmakers decided the bulk of the public defenders office’s budget should come from revenue from traffic tickets and court fees. Louisiana is the only state in the nation that does this. The ACLU has called this funding mechanism “inherently unreliable” and filed a lawsuit in January to change it, charging that such fines and fees are disproportionately imposed on people of low income.
The seven were assigned private fill-in lawyers, who in turn told the New Orleans criminal court that it needed to compensate them for their services, The defendants are each facing serious felony charges ranging from aggravated assault to murder, which require ample investigative resources that don’t come cheap. If the courts aren’t able to pay the private lawyers, and the defendants can’t secure legal representation—public defender or otherwise—then they must be set free, said Pam Metzger, a private attorney assigned to handle indigent cases, to the court last month.
On Friday, Arthur Hunter, the judge presiding over the matter, agreed, and released the seven inmates (though their criminal charges have not been dropped). They are free until the state and court system are able to come up with funding to secure them lawyers and actual hearings can be scheduled for them. New Orleans district attorney’s office said they will appeal the decision.
Said Hunter in his 11-page ruling, “The defendants’ constitutional rights are not contingent upon budget demands, waiting lists, and the failure of the legislature to adequately fund indigent defense.”
The Sixth and Fourteenth Amendments of the U.S. Constitution guarantee people the right to a speedy trial and to a skilled and well-equipped defense lawyer—even for those who can’t afford one. Hunter cited at least a dozen U.S. Supreme Court and Louisiana Supreme Court decisions that explicitly assert those rights, especially for those of low income.
“This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him,” wrote the Louisiana Supreme Court in the 2004 State v. Citizen ruling.
“This is especially true for defendants in jail,” reads the Massachusetts Supreme Court’s 2004 Lavallee v. Justices in the Hampden Superior Court ruling, “who are virtually powerless to obtain a lawyer on their own or to begin working on their own defense. The harm from inaction over a period of time is cumulative.”
Which is why Hunter wrote in his ruling Friday that, “The court has no difficulty concluding the defendants’ constitutional right to assistance of counsel is being violated.”
There’s no telling right now how this ruling might affect the hundreds of other people sitting in New Orleans jails because they can’t afford lawyers. However, Hunter said that a fundamental question before the court needed to be answered in order to to move forward:
How long can a person who cannot afford to hire an attorney remain in jail without a date certain for proceedings to begin, and funding from the legislature made available for constitutionally mandated legal representation?
Those questions can’t be answered until the state comes through with a better way to fund public defenders services. Louisiana is currently struggling with how to cover hundreds of millions of dollars in debt left by former Governor Bobby Jindal. And the new governor, John Bel Edwards, said that the state may have to cut public defenders funding by an additional 62 percent this year, a proposal that drew the opprobrium of the president of the American Bar Association.
The Louisiana legislature is currently working through a bill that would provide a more secure stream of funding for public defenders, which cleared the House of Representatives this week. But state district attorneys—whose budgets far outweigh public defenders’— are criticizing the bill.
So as the lawmakers debate the costs of delivering justice, the questions they should be thinking about should be, as Hunter wrote: “What kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?”