New
Orleans — ON an ordinary day, the Criminal District Court here begins
with a parade of handcuffed and shackled defendants being led out from
cages behind the judge’s bench by sheriff’s deputies. They are clad in
orange jumpsuits and are almost exclusively African-American men. They
rattle and shuffle their way onto benches and into the empty jury box,
waiting for the judge.
When
their case is called, a lawyer from the public defender’s office will
rise and say: “Your Honor, we do not have a lawyer for this person at
this time.”
Eight-five
percent of these defendants are unable to afford their own lawyer and
will need a public defender to represent them. But in New Orleans, where
I am in charge of the public defender’s office, we simply don’t have
enough lawyers to handle the caseload. Last month, we began refusing new
cases.
In a state with one of the nation’s highest poverty rates, the system to defend the poor is broken.
To
understand why, look at the other people in the courtroom sitting on
benches set aside for the audience. Most of these people aren’t there to
watch the proceedings. Many were subpoenaed for failing to pay fines or
fees for minor offenses and had to take time from work to appear in
court or be charged with contempt. Those fines and fees pay for
two-thirds of the Louisiana public defender system. The rest comes from
the state.
It
is not an exaggeration to say that fines from traffic offenses, which,
in Louisiana, can result in jail time, play a big part in determining
whether one of those men in the orange jumpsuits receives an adequate
defense required by the Sixth Amendment to the Constitution.
Poor
people must pay $40 to apply for representation, and an additional $45
if they plead guilty or are found guilty. No other states lean so
heavily on fines and fees paid mostly by the poor. And there is a reason
for that. The system isn’t working.
Louisiana
spends nearly $3.5 billion a year to investigate, arrest, prosecute,
adjudicate and incarcerate its citizens. Less than 2 percent of that is
spent on legal representation for the poor.
It is little wonder that Louisiana has the nation’s highest rates of incarceration and exoneration for wrongful convictions.
Last
fall, at a hearing ordered by the Criminal District Court in response
to this crisis, years of underfunding by the state were chronicled.
Public defenders have weathered more than $5 million in budget cuts over
the last five years. For the second time in four years, we have been
forced to impose a hiring freeze and, now, have begun turning down
cases.
In
response, judges are ordering private lawyers to take poor clients.
Other poor defendants have been left to represent themselves. And in
some cases, judges have threatened public defenders with contempt for
refusing to take a case.
James
Dixon, the state public defender, and members of my staff and I filed
affidavits and testified about how our workloads had reached
unmanageable levels. Many public defenders are unable to visit clients,
file motions in a timely manner or conduct the necessary investigations.
In fact, our workload is now twice the standard recommended by the
American Bar Association.
Ellen
Yaroshefsky, a professor at Cardozo Law School in New York City and one
of three experts who testified, said it was a misnomer to call the New
Orleans court system a “justice system.” Professor Yaroshefsky told the
judge: “You’re not operating a justice system here. You’re operating a
processing system.”
While
the situation here may sound extreme, overloaded public defenders are
struggling across the country. A 2013 study in Missouri provided a
snapshot of the problem. For serious felonies, defenders spent an
average of only nine hours preparing their cases; 47 hours were needed.
For misdemeanors, they spent two hours when 12 hours were necessary.
Similar studies are underway in Colorado, Rhode Island, Tennessee and
here in Louisiana.
“The
problem of grossly underfunded public defender organizations with
grossly excessive caseloads is a systemic, endemic problem going back 50
years,” said Stephen F. Hanlon, general counsel for the National
Association for Public Defense, who is overseeing the current studies.
In
New Orleans, our decision to refuse new cases didn’t come easily. No
one becomes a public defender to tell a poor person, “No, I can’t help
you.” But the outcome of an arrest in a shooting at Bunny Friend Park here last November that left 17 people wounded influenced my decision to stop taking cases.
Every weekday, get thought-provoking commentary
from Op-Ed columnists, The Times editorial board and contributing
writers from around the world.
A
32-year-old man was arrested in the case and held on $1.7 million bond.
He had immediately asserted his innocence but the police said a witness
had identified him. His family hired a private lawyer who went to
Houston to locate video of the suspect shopping with his girlfriend at
the time of the shooting. The charges were dropped.
Reading
about this case, I realized my office could not have guaranteed the
timely retrieval of this important evidence before it would have been
routinely erased. That would have left an innocent man to face trial for
his life for what was labeled an act of “domestic terrorism” by the
mayor of New Orleans.
Louisiana
needs fundamentally to reform its system of public defense funding. The
state needs to arrange adequate and stable financing based on reasoned
projections of the workload. Fines and fees, to the extent they exist at
all, should act as a supplemental source of financing.
The
role of the public defender is to protect the innocent, defend the
Constitution and demand justice and fairness. But when resources are out
of balance, as they are in Louisiana, so is the system. The poor are
the ones who are hurt.
