Council members Kristin Palmer and Jay Banks in City Council chamber (Michael Isaac Stein/The Lens)

The Orleans Public Defenders office went before the New Orleans City Council on Wednesday to request that the city follow through on an ordinance that mandates parity in city funding between public defenders and the district attorney, which the council unanimously passed in August — but was ignored in Mayor Latoya Cantrell’s proposed 2021 budget

The mayor’s proposed budget allocates $1.6 million for the public defenders. But at the meeting the public defenders pushed the council to increase that to $4.8 million. That’s 85 percent of what is proposed for the DA’s office, which is what the August ordinance calls for. 

At least a few of the council members on Wednesday — the third day of hearings on the proposed 2021 budget — said that they were still committed to finding a way to achieve parity for the office. 

“I’ve said from the dais, I’ve said publicly, I’m supportive of the parity ordinance,” said Councilmember Kristin Giselson Palmer, saying she would propose an amendment to the budget that achieved parity. 

Councilmembers Helena Moreno and Jason Williams — who is a candidate in a runoff election for district attorney himself — also said that they were committed to finding the additional funding. But whether the council will be able to agree on where that money should come from remains to be seen. 

“I’m going to look at it in terms of coming specifically from criminal justice line-items, all the way across the board,” Palmer said. “Whether or not we can all come together and find a consensus which equals votes, we’ll find out. But I’m committed to doing that.” 

It was not clear if parity would necessarily mean the increase in funding that the public defenders were asking for, however. It also could mean further cuts to the DA’s budget. 

“Parity also means we can substantially cut the DA as well, correct?” Palmer said.

Chief Public Defender Derwyn Bunton said that was correct, and that it would be a decision for the council. 

“Parity is parity — it can go either way,” Palmer said.

‘Winning the championship, but you can’t receive your trophy’

When the parity ordinance passed in August, the public defenders celebrated what they described as a “historic moment.”

Historically, the city has only allocated the public defenders a small fraction of what it gives the DA’s office. But from the outset, it was unclear how the ordinance would play out when it was time for the city to actually pass a budget.

The parity legislation is found in the city’s code of ordinances. The budget itself is also passed as an ordinance, and would therefore nullify the parity ordinance — regardless of the funding allocations between the offices. In contrast, the New Orleans charter — the foundational legal document for the city —  mandates that the Office of Inspector General get a certain level of funding each year. That can’t be overwritten by a budget vote.

Last month, when Cantrell released her proposed budget, it maintained this year’s proportion of funding between the DA’s office and the public defenders — with the DA’s office poised to receive about three times what the defenders will —  while cutting both by 20 percent.

Both offices also have additional sources of funding beyond the city general fund allocation. Including those sources, the DA’s office’s budget is about two times OPD’s. 

Robert Jones — who was wrongfully convicted and incarcerated for over 20 years and now works as the director of outreach and community organizing at the public defenders office — said at Wednesday’s budget hearing that the mayor ignoring the ordinance was like  “winning the championship, but you can’t receive your trophy.”

The disparity in funding between the two offices, public defenders argue, increases the rate of wrongful convictions and exacerbates racial disparities in the criminal legal system because overburdened public defenders can’t provide adequate representation to their clients. 

Bunton said that if the funding was increased to the level requested, he could hire more lawyers and reduce those caseloads. 

“We’d get more lawyers in the building,” Bunton said. “Right now we’re looking at dangerously high caseload, and cases that aren’t moving because of the pandemic. And we’re hemorrhaging lawyers right now.We’re going to lose four lawyers at the end of the month. We’ll going to be down to 50 lawyers. And that, for 25,000 cases a year, is an untenable workload by any standard.”

But Bunton also faced some tough questions from the council.

“I support the idea of parity, but since that ordinance came about — and I supported it, and still support the concept of it — there have been questions that have been raised, not so much about the fairness of having an equitable system but specifically about how the public defenders office has operated,” Councilmember Jay Banks said. 

He questioned whether or not the office needed a legislative liaison, and also — in a tense exchange — whether or not they hired enough people from New Orleans. 

“There also much chatter about there being an aversion from your office to hiring Lousiiana lawyers,” Banks said. “I’m being told you have a propensity to bring in New Yorkers and Californians at the expense of local graduates of our very fine law schools.” 

Bunton named several local colleges and high schools that his employees attended, and called the allegations “baseless,” but wasn’t able to provide a percentage of how many were “local grown” versus “imported in,” as Banks had put it. 

“We do not ask that on the application,” Bunton said.  “It’s also kind of ridiculous that this is the questioning we get versus some other folks in the system. And again, it speaks to the unfairness of the system. The folks that stand proximate to the least of these, get these long drawn out, worn out, questions. Which is fine, I’ve done this dance many times.”

“I guess I resent the fact that you keep disparaging my questions, and therefore disparaging me,” Banks said. 

Bunton said that he had not intended to disparage him, and understood that he was only representing questions that had been raised by constituents. 

Councilmembers also questioned whether or not the office was doing enough to cut rent costs. The current space the office occupies in Tulane Towers costs nearly $300,000 a year. Bunton said the office was exploring options with the city, and hoped they could find a new space near the courthouse.

Questions remain regarding Criminal District Court fines and fees

The Orleans Parish Criminal District Court also presented at the meeting on Wednesday. Cantrell has likewise cut the court’s city allocation by 20 percent. And earlier this year — prior to the release of her budget — the city council threatened to reduce the court’s budget if judges did not stop assessing bail and conviction fees

The council passed a non-binding resolution in August urging the court to return the nearly $600,000 in fines and fee money that had been going into an escrow account. The money was being put in the account due to a federal ruling in 2018 that found the judges at criminal court had a conflict of interest when determining a defendant’s ability to pay those fees, and a recently passed state law mandates that money be handed over to the city. (Previously, the court had relied on those fines and fees to fund its operations — causing the conflict of interest.)

But the council’s resolution said that the city would decline to accept those funds — instead instructing the court to return the money to the defendants who paid it. It also also said that the council would deduct $2 from the courts budget for every $1 put into the escrow account, “to incentivize the criminal district court to exercise their discretion to refrain from assessing conviction fees.” 

But the resolution did not come up at the meeting on Wednesday, and it did not appear that the council intends to further cut the courts budget. 

At the time it was passed, some council members and advocates pushing for the resolution acknowledged some legal and logistical challenges stemming from it. State law mandates that judges assess conviction fees for any defendant who is not found to be indignant. State law also mandates that a portion of bail bond premiums be paid to the court, which are also put into the escrow account. 

It was unclear whether the city would refuse all that money, or only the conviction fees, over which judges have more discretion because they can find a defendant is indigent and therefore unable to pay. It was also unclear whether or not the council intended to reduce the court’s budget based on all the fees assessed  — even those that were non-discretionary. 

None of those questions were addressed at the hearing. Councilwoman Giselson Palmer, who authored the resolution, did not immediately respond to request for comment.

Will Snowden, director of the Vera Institute for Justice in New Orleans, who presented on the resolution at the criminal justice committee earlier this year, said that he wasn’t sure why the resolution wasn’t discussed, but that the council may be waiting to see if the judges change their behavior with regard to the fines and fees. 

“My interpretation is, let that resolution be in place for a year to see how the judges may have shifted their practices, as well as a signal from city council to committing to fully funding the court,” he said. “But yeah, I’m not quite sure why they didn’t talk about it. But at least knowing that the resolution will allow us to look at any, you know, conviction fees that have been imposed over this next year, we’ll have a good data set to work with.”

But Snowden said that his organization was actively working to figure out a way to return those conviction and bail fees already in the escrow account. 

“Councilmember Palmer has indicated her primary interest is for those funds to be returned to the people that paid them,” Snowden said. “However, how that’s going to happen hasn’t been ironed out yet.” He said that Vera was working with another organization, the Justice Accountability Center, to try and help identify the individuals who paid into the fund and facilitate returning  the money. 

“That’s still kind of in an exploratory phase,” he said.

Nicholas Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...