Right to Counsel for Louisiana’s Indigent Defendants Remains at Risk

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Louisiana’s public-defender crisis may well cement the Bayou State’s position as the country’s prison capital. The Louisiana Public Defender Board has seen its budget slashed as state lawmakers try to stanch the red ink flowing out of Baton Rouge. This latest round of cutbacks promises to further compromise the agency’s ability to provide poor criminal defendants with legal counsel.

The crisis has forced Louisiana public-defender offices across the state to lay off attorneys and cut the salaries of the employees who stay on. In fiscal year 2017, state public-defender offices will only receive $12.8 million, down from $33 million the previous year, a 61 percent cut. Burdened with unmanageable caseloads, the remaining public defenders are unable to consult with with every defendant who needs representation.

In some Louisiana parishes (subdivisions comparable to counties), public defenders struggle with caseloads approaching 1,000 felonies annually. The National Legal Aid and Defender Association recommends that public defenders carry caseloads of no more than 150 felonies per year.

“When a lawyer has too many clients so that he or she can’t be competent anymore for each of them, that violates the rules of professional responsibility,” says Stephen Hanlon, a lawyer with the National Association for Public Defense, who is studying workloads for the Louisiana Public Defense Board. “It’s unethical.”

That situation has created a vicious cycle of forcing more defendants into jails that are already overcrowded with people who have not yet received a court-appointed attorney. Without lawyers available to help poor defendants get released on their own recognizance, they often end up unable to be make bond. So they spend more time in jail than they otherwise might have if they’d had proper representation from the start. “That’s how you have jails that are just bursting from the seams with a lot of low-level offenders,” says Colette Tvedt, the National Association of Criminal Defense Lawyers’ public defense training and reform director.

The Sixth Amendment guarantees a criminal defendant the right to counsel. In the 1963 Supreme Court case Gideon v. Wainwright, the high court ruled that defendants who have been charged with any crime, whether felony or misdemeanor, and are unable to afford a lawyer must receive court-appointed counsel at no cost. “There shouldn’t be anybody who doesn’t have a lawyer sitting in any jail,” says Hanlon. “If you don’t have a lawyer, you should be released from jail and your case should be dismissed.”

However, in Louisiana, a poor defendant’s right to counsel continues to be undermined by the state’s budget woes. Louisiana already has the highest rate of incarceration in the United States, with 847 people behind bars for every 100,000 residents. The state with the second-highest incarceration rate, Mississippi, comes in far behind at 692 people behind bars per 100,000 residents. 

The Bayou State also has the highest number of wrongful convictions and prisoners serving a life term without the chance of parole. (In 2012, The Times-Picayune published an eight-part series explaining the factors that contribute to Louisiana’s swollen prison population, including harsh sentencing laws, a private prison system that incentivizes keeping inmates in local jails, and lack of re-entry services.)

Established in 2007, the state public defense board has been plagued by chronic underfunding. Those fiscal problems have forced many parishes to impose restrictions on who receives counsel. In the parishes where public defenders have been forced to restrict legal services, only defendants who have been charged with a crime that involves public safety—such as murder, assault, or rape—get a public defender.

“It seems that in many jurisdictions only those who are charged with more serious felonies are being appointed public defenders,” explains Tvedt. “There are so many presumed-innocent defendants that are languishing in jail without the benefit of counsel.”

For people charged with more serious crimes, the stakes are even higher without access to skilled counsel. The most critical period for defendants is 48 to 72 hours after the alleged crime. During that period, lawyers can consult with defendants and gather more information about the allegations. But when defendants are forced to wait for public defenders who already have unmanageable caseloads, “people get lost, stories change, and evidence is lost,” laments Tvedt.

Even people who should not end up in jail can find themselves behind bars, says Tvedt, citing the case of two Texas women who were held in a Louisiana jail for five days in March after being wrongfully accused of stealing hot dogs, milkshakes, and a iced drink from a convenience store. “When you don’t have a lawyer there to advocate for your release, judges are making decisions based simply on the crime,” says Tvedt.

Releasing alleged rapists and murderers would alarm the public. But Hanlon explains that courts can keep the public safe and meet the requirements of the Sixth Amendment by making sure that public defenders are representing the high-risk defendants. “All that low-level stuff? Those [cases] can be dismissed,” Hanlon says. “But that’s not what’s happening in Louisiana.”

The budget crisis that has crippled the state public-defender board has been a long time in the making. When Republican Bobby Jindal was elected governor in 2008, he inherited a $1 billion surplus, thanks to high oil prices and federal recovery money from 2005 Hurricanes Katrina and Rita. Jindal’s wholehearted embrace of the anti-tax pledge pushed on GOP officeholders by Americans for Tax Reform's Grover Norquist led to Louisiana’s dire situation. Jindal gave tax breaks to wealthy residents, and exempted corporations from paying income tax, while falling oil prices decimated the once-thriving state industry.

By the time Jindal left office earlier this year, Louisiana was on the brink of a financial disaster. State lawmakers still must address a $940 million deficit by June 30. The future is even more ominous. The Bayou State’s budget for fiscal year 2017 already falls short by $2 billion.

After the Orleans Public Defenders Office began refusing cases in January, the American Civil Liberties Union filed a lawsuit to compel the state legislature to provide funding for the cash-strapped public defenders. With state lawmakers weighing more cuts and new tax increases to close the budget gap, the funding picture for Louisiana public defenders and their clients remains murky. For Tvedt, labeling the public-defender situation a “crisis” doesn’t do justice to the legal quagmire unfolding in Louisiana today. “That’s not even the proper word to use to describe what’s going on in the system right now,” Tvedt says. “It’s beyond that.”

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