Last week public defenders, advocates, and City Council President and DA candidate Jason Williams gathered on the steps of Orleans Parish Criminal District Court to celebrate what they marked as a “historic moment” in the city’s criminal justice system. The New Orleans City Council the day before had passed a 2021 city budget that allocates more money to the public defenders office than ever before.
“This is personal to me as someone who has seen the miscarriages of justice over and over again in this building behind me,” Williams said.
But in an interview with The Lens on Monday, Chief Public Defender Derwyn Bunton said that while the increased city allocation would allow the office to avoid the “worst possible outcome” he also warned that with declining revenue from sources such as traffic tickets and court fees, lack of funding still threatened the ability of the office to handle a caseload that has been piling up since before the COVID-19 pandemic.
Since then, with jury trials suspended since the spring, that backlog has only grown worse.
According to a presentation by the office at the City Council budget hearings earlier this month, there are 765 people on a waitlist for a public defender in New Orleans.
The months leading up to the final passage of the city budget were a series of highs and lows for the public defenders. In August, the City Council passed an ordinance mandating that the public defenders receive 85 percent of the money that the District Attorney’s Office receives from the city. Typically, the city allocation for the public defenders has been one-third or less of the DA’s.
But Mayor LaToya Cantrell’s proposed budget, unveiled last month, ignored that ordinance altogether, maintaining the traditional disparity and cutting both offices’ funding by 20 percent.
But at the public defenders’ budget hearing, councilmembers said they were still committed to achieving “parity” in funding between the two offices, and Williams eventually proposed a budget amendment that took money from the Sheriff’s Office, the DA, and the clerk of court to increase the defender budget by $1.8 million. That gave the public defenders a $3.4 million allocation — combined with the $300 thousand cut to the DA, it put the public defenders at more than 60 percent of city funding as the DA.
A spokesperson for District Attorney Leon Cannizzaro declined to comment on its own office’s budget for this story. But he told the Times-Picayune/New Orleans Advocate in a statement that the extra cut “spells doom for many of our still-furloughed employees and inflicts excessive damage to the continued operations of this office for the next administration.” The statement also said that Williams — because of his candidacy for DA in the Dec. 5 election — should have recused himself from the budget negotiations involving the offices. (Following the Nov. 3 election, Williams is running against former Judge Keva Landrum in the December runoff. Cannizzaro did not run. He announced in July that he would not seek a third term in the office.)
While jury trials continue to be on hold in Orleans Parish, those 765 defendants without assigned lawyers are not able to preserve crucial evidence, file preliminary motions in their cases, or resolve them through plea deals, public defenders have warned.
Those defendants were initially given an attorney for their first appearance hearings, but not assigned one after. Bunton says the office prioritizes the cases of people who are in custody.
The low-hanging fruit in terms of dealing with those cases, Bunton said, is assigning new contracts to private attorneys to handle cases for indigent defenders that their office can’t take due to conflict of interest — such as when there are multiple defendants as part of the same case, or if a defendant has been a witness in a previous case. That represents about 245 of the 765 cases — with five of them currently in jail.
The office had stopped issuing those contracts as a cost-saving measure at the start of the pandemic. But according to Bunton, with the newly promised funding from the city, the office has now resumed issuing those contracts.
“Those folks that would sit in and out of jail without legal counsel is something that can only go on for so long before we have a real constitutional crisis and we have to start figuring out what to do in those instances,” said Bunton. “So that would certainly have been bad.”
Bunton said that assigning conflict lawyers could be done relatively quickly. But for the rest of the cases, the office will need to hire new lawyers or move through their existing caseloads —which is going slowly due to court closures and the jury-trial suspension. Bunton said that his office is down over a dozen lawyers since the start of the year.
“We’re losing experienced lawyers, and less experienced lawyers, and replacing that kind of competence — that kind of talent — is going to take time,” he said.
But he also conceded that it was likely those cases wouldn’t be moving quickly anyway due to the pandemic.
“Procedurally, at this point, even with staff, we wouldn’t be able to move a bunch of cases anyway because of pandemic restrictions,” Bunton said. “So it’s sort of a sort of a coming together of forces that are going to slow things down — which is actually a benefit for us because it gives us time to staff up with the talent we need, or attempt to at least, so that we can be ready for these cases to move.”
While the city allocation improves what could have been a far more dire funding situation, they are still battling a decline in revenue from court fees and traffic tickets — which had already been taking place before the pandemic, but was further exacerbated when courts closed in March. The office is projecting that it will receive around $1 million less from those sources in 2021 than it did in 2018.
“During the pandemic, it was almost like a joke,” Bunton said. “It probably took more labor to cut the check to us than the amount of the check from the court. You talk about $34 one month from Criminal District Court.”
The funding of public defenders offices through court fees and traffic tickets is set up by state law, but advocates have long argued that it is a bad way to fund the system.
Recently, there has been some discussion about changing that at the state level. A task force on criminal justice funding released a report last year finding that the reliance on fines and fees was “ineffective and unreliable” and that the system should be funded “primarily from general government revenue sources.”
“We’re still looking at declining revenues from sources that we were calling problematic what have been calling problematic now for more than a decade,” Bunton said. “So our user-funded system is still part of the problem.”