When the coronavirus pandemic hit New Orleans in March, courts closed, arrests slowed, fewer traffic tickets were issued, and staff at the Orleans Public Defenders office knew that once again their funding was in trouble.
About a third of OPD’s funding comes from fines and fees paid by people convicted of crimes or issued traffic tickets. With Gov. John Bel Edwards’ stay-at-home order in place for much of the spring, the office initially estimated that the revenue from those sources would decrease by $800,000, and began making cuts.
“Pre-COVID, we were having some funding and resource problems but were in the process of trying to make some projections and figure that out,” said Derwyn Bunton, chief public defender at the office. “Then the pandemic hit, and the projections that came from us and from the state pointed to the fact that we really had to cut some costs.”
The cuts came in the form of furloughed employees and the end of contracts with expert witnesses, as well as with outside attorneys who handle cases when the office has a conflict of interest. The latter cut has had a direct and dire effect on indigent defendants in the city: By the end of June, according to the public defenders, over 160 people in New Orleans charged with crimes didn’t have legal representation. Twenty-five of them were in custody at the New Orleans jail, where at one time over 90 detainees were positive for coronavirus.
But the pandemic has only exacerbated what public defenders across the state have long derided as a funding structure that is “inadequate, unstable and unreliable.” Beyond that, it has highlighted the broader concerns with a “user-pay” system that relies on conviction fees in order to fund nearly all aspects of the administration of criminal justice.
Despite being in place for decades under statutory law, there is some evidence that there is appetite at the state legislature to make permanent changes to both public defender funding and funding for the system as a whole.
A Commission on Justice System Funding, consisting of advocates, lawmakers, and various representatives from the criminal justice system throughout the state, was convened by the legislature in 2019, and was renewed during the 2020 regular session.
In February, they released a report detailing their findings over the first year of work. In addition to being unreliable, the report noted that funding criminal justice through fines and fees “entrenches poverty and racial disparities,” and “fundamentally compromises the criminal justice system’s ability to deliver on its primary mandate: to protect the public.”
‘They have absolutely no access to the courts or to counsel’
As a mitigation effort for the projected revenue loss, in mid-April the Orleans Public Defenders office decided to suspend their use of conflict panel contracts, which are given to private attorneys to represent people in cases where the office might have a conflict of interest — such as in cases when there are multiple defendants, or there is a witness in a case who the office has previously represented.
Conflicts can occur in all types of cases, from minor drug possession to violent crimes. Colin Reingold, litigation director for the public defenders, said one common occurrence is when there are two defendants stemming from an alleged drug deal.
“Bourbon Street: The cops think they see drugs pass from one person to another,” he said. “One is arrested for dealing. The other is arrested for possession. We can’t represent them both under the ethical rules.”
In normal times, one of those defendants would have been assigned by the public defenders office to a contracted private attorney — who had first applied and been approved to serve on the office’s conflict panel.
But beginning in mid-April, defendants were instead put on a waitlist while the public defenders office attempted to recruit lawyers to represent them for free. The office has not been able to find enough attorneys to prevent that waitlist from growing to substantial numbers. And despite jury trials being suspended indefinitely in New Orleans due to the pandemic, the lack of representation is still concerning for defendants.
“No one is assigned to begin investigation, no one is filing motions, no one is trying to reduce their bond, no one is filing motions for discovery, preliminary hearings,” said Bunton. “All these things that a lawyer can do to start a case, these folks don’t have access to at this point.”
The delay in starting an investigation on a case can have significant negative outcomes for defendants, Reingold said, particularly if they are hoping to make an innocence claim.
“Worrisome are people who are newly arrested on serious charges, who have transient evidence in their favor that they’re going to be unable to get — surveillance videos and things like that, which get overwritten very fast,” he said. “And the only way to get them is with a lawyer. We are keenly aware that people who aren’t getting lawyers are losing precious weeks or months to try and get that evidence preserved.”
“There’s also the harm that some folks might have obvious low-hanging innocence that they can’t make because they are in jail and they don’t have a lawyer,” he said. “Just ask for the body cam and you’ll see that it was somebody else. And there is no one to do that for them.”
But given the funding situation and the nature of the cases, Bunton said his office has had little recourse in helping those defendants over the last few months.
“These are cases, where even if we wanted to overload ourselves, we ethically can’t take these cases. The rules of ethical conduct we can’t handle them. So we worry about those clients, their families, their cases. We have people in jail now who are innocent until proven guilty, but they have absolutely no access to the courts or to counsel.”
Some respite came on July 1 for the office and its clients waiting for representation with a new state fiscal year and thus a new round of funding from the state, distributed by the state Public Defender Board. Furloughs for employees at the office ended on June 30, and it has once again begun assigning contract attorneys to indigent defendants — starting with juveniles and those who are still in custody at the jail.
But Bunton said that he is concerned that given the continued decrease in revenue, the state funding won’t last, and once again there will be defendants charged of crimes without an attorney.
“We suspect that money will run dry before the end of our fiscal year,” he said. “There will be at least some temporary relief for folks who are in custody right now and folks who are out of custody and waiting for their cases to move because we’ll have some resources to enter into contracts with members of our panel and assign those cases. But all signs point to that being temporary, and sometime during this fiscal year, I suspect we’ll have a waitlist again.”
‘Cautiously optimistic’
As public defenders offices across the state, dependent on revenue streams that have been decimated by court closures and other effects of the coronavirus. But despite the shared funding crisis, there has also been some limited cause for hope.
At the state capitol in June, Rémy Voisin Starns, the State Public Defender, went before the House Appropriations committee and asked for a budget increase of $29 million — the total amount district offices collect in fines and fees revenue throughout the year.
Starns warned that without additional funding there could be “system-wide insolvency.”
Instead, the legislature gave the state Public Defender Board an additional $7 million to dole out among its district offices.
But Derwyn Bunton said that receiving even the additional $7 million was “a milestone in and of itself,” and that the “language has shifted” around the funding of public defense and the criminal justice legal system as a whole.
“In the discussion, there wasn’t a single person — Republican, Democrat or anything in between — that was defending our current user-pay criminal legal system,” he said. “To a man, to a woman, everyone agreed that some change needed to be done.”
“It doesn’t really work,” said Louisiana House Speaker Pro Tempore Tanner Magee, a Houma Republican who serves as the chairman of the Commission on Justice System Funding, in an interview with The Lens. “It may sound good politically, the ‘make the criminal pay’ kind of stuff, but it just doesn’t really work at all.”
In the 2020 regular legislative session, a bill sponsored by Magee directed the Legislative Auditor and the Louisiana Supreme Court to develop a uniform reporting system around the state for fines and fees, which Magee said was necessary to understand how much revenue fines and fees actually generate, and was the first step to replacing them.
The current system across the state, the legislation notes, is “fragmented and does not provide a comprehensive picture of certain judicial finances and the costs of operating the judicial system.”
Magee said that while he feels confident that most of his colleagues at the legislature agree that the system is not functioning the way it should, taking the steps necessary to change it may still prove difficult.
“I think there is consensus in concept,” Magee said. “I don’t know there is consensus in reality when it comes to where you actually are going to have to find the money — because it has to come from somewhere. And that’s always the difficulty.”
“I am cautiously optimistic that we are moving in a direction that is going get some structural change,” said Bunton, “because this is simply untenable and unconscionable that a constitutional right, one of the original ten amendments to the Bill of Rights, is funded through these user fees is such a haphazard ad-hoc way.”