Under the constitution, everyone has the right to an effective criminal defense lawyer regardless of ability to pay. But in Louisiana, thousands of people charged with crimes are waiting for lawyers who haven’t been appointed. The legislature’s funding method for indigent defense depends in large part on tickets and fines, and Louisiana’s already woefully underfunded public defense system is in crisis.

Thirty-three out of 42 public defender offices in the state have restricted their services, and half of the offices are expected to be insolvent if things don’t change very soon. Some offices are closing or laying off employees. Some are refusing to take on new cases. The problem is that, by and large, even before this crisis, poor people were not getting representation in vast regions in Louisiana. In some districts, no indigent person has ever had access to an investigator or an expert in any non-capital case. Even before the current crisis, some districts employed part-time lawyers with felony caseloads of over three or four hundred cases.

As caseloads skyrocket, even experienced defense attorneys become ineffective. American Bar Association (ABA) guidelines advise lawyers of their ethical obligation to refuse cases that will make their workloads unmanageable. Orleans Public Defenders (OPD) is doing just that because they cannot effectively represent all of the clients the court is pushing their way. The office announced that it would start refusing case assignments this January.

After years of underfunding and over-incarcerating, the system is on the verge of collapse. Hundreds of people — 200 to 300 in the Lafayette region alone — are stuck waiting in jail for lawyers simply because they don’t have enough money to hire private defense attorneys. In some districts, waiting lists have become the norm. In Iberia, the courts have decided to wait until the end of May to have a hearing to determine what to do with unrepresented defendants.  

This problem isn’t new.  When the United States Supreme Court granted certiorari in Gideon, Louisiana was one of the states that objected to the idea of being required to provide a lawyer to those who couldn’t afford one. Back in 1984, Caddo Parish, one of the counties with the most death sentences in the country, was appointing attorneys to death penalty cases who had zero criminal law experience. Glenn Ford, who was exonerated two years ago after spending more than thirty years on death row for a crime he did not commit, was represented at trial by lawyers without any prior criminal law experience.

The real problem, though, is that the state has passed laws punishing almost every type of conduct with severe sentences. The state budget reflects a fundamental indifference to the crucial function of defense, and this indifference is reflected in the way funding is generated. First, free legal representation isn’t free – indigent defendants get charged $40 for public defenders. Next, the budget for public defense mostly comes from court fine revenues (mostly from traffic tickets). This system creates perverse incentives for defenders — the more their clients are forced to pay in fines, and the more tickets police officers hand out, the more money there is to hire defenders. When there are fewer tickets, the money can dry up easily.  One of the perverse results is that poor people are forced to fund the system that does not serve them.

The bottom line is that the funding is neither adequate nor guaranteed. In the meantime, Louisiana’s state legislature seems to have no problem funding prosecutors or passing laws that criminalize more conduct.

The ABA has weighed in, noting that the state has an obligation to fund the “critical and necessary” expense of public defense. Not providing adequate funding will lead to “mass constitutional and ethical violations, as well as likely increasing wrongful conviction and mass incarceration,” according to Paulette Brown of the ABA. Brown’s statement is measured.

Louisiana Supreme Court Justice Bernette Johnson has also gotten involved, pleading with the legislature to fund the offices.

And in the midst of the legislature’s debate, some strange things have happened.

First, the ACLU is suing OPD for turning clients away, along with the state Public Defender Board for failing to provide funding. The defenders aren’t fighting the ACLU; they want the same thing. On the OPD website, the lawsuit is described as a chance for reform.

Second, a Republican legislator and former sheriff has suggested a surprising and welcome conclusion: eliminate the death penalty. The costs associated with capital defense, including necessary funding for mitigation specialists and required appellate lawyers, amount to nearly one third of all defense costs in the state.

In a recent capital case pending before the United States Supreme Court, Caddo Parish prosecutors argued that the decrease in death sentences elsewhere in Louisiana was not the result of a growing reluctance to impose the death penalty, but rather it was a result of the “luxurious” representation that capital defendants receive in Louisiana. Putting aside the factual circumstances of that claim as it applies to that defendant, there a tone deafness in this comment given the reality of the defense funding crisis in the state. Not to mention that Caddo Parish is one of just 16 counties in the United States that are extreme outliers in their overuse of the death penalty. Routinely overcharging defendants and then blaming them for the legal bills is absurd.  

In a state that has had more exonerations from death row than executions in the current century, Louisiana will have to decide whether it wants to keep its death penalty or fund its constitutional obligations; it does not appear to have the money to do both.