There is no greater tyranny than government taking a person’s liberty without the criminal process being a “fair fight.”

Malcolm Jenkins

Public defenders are the nation’s firewall that protects the indigent accused from the “machinery of law enforcement.” But who should appoint the person to run public defense in Louisiana?

As a Players Coalition co-founder and former Saints player, I care deeply about ensuring that Louisiana’s criminal justice system is fair and just. I believe that we are all one choice or allegation away from finding ourselves involvedy in the criminal justice system. And an independent public defense system is critical to protecting the constitutional rights of both the innocent and of those who made a poor choice. 

The U.S. Supreme Court has time and again determined that the state has a constitutional obligation to respect the professional independence of public defenders. Observing that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the court concluded that a “public defender is not amenable to administrative direction in the same sense as other state employees.”

In 2007, the Louisiana legislature successfully met the constitutional objective of independence by creating the Louisiana Public Defender Board (LPDB). For now, LPDB remains an 11-member board appointed by all three branches of government, and this independent board chooses the person to run public defense in Louisiana.

That changed on Thursday, when Gov. Jeff Landry signed Senate Bill 8, which passed passed both chambers during last month’s second special legislative session.

Senate Bill 8, now Act No. 22, undercuts independence by transferring the power to regulate and fund public defender services from the board to a new Office of the State Public Defender and giving only the governor – not an independent board – the power to hand-pick the State Public Defender to run Louisiana’s public defense system. While the senate and the board must confirm the Governor’s nominee, they cannot conduct the rigorous national search that Louisianans deserve. And the board has no power to remove the state public defender — even if they become incapacitated or engage in malfeasance.

Regardless of whether one thinks this governor will not exert undue political pressure on the public defender he appoints, what is to ensure that the next governor, or the one after that, will do the same? What ensures that the next governor won’t cut the public defense budget because it is not politically palatable to fund public defenders or refuse to renew a chief district defender’s contract, simply because the governor asked them to? If we were discussing the federal defense system, would conservatives be fine giving President Joe Biden the tyrannical power to control how well or poorly people are defended against charges brought by the U.S. Department of Justice?

Louisiana has significant indigent defense problems, but LPDB has not been one.

Louisiana, unlike any other state, relies extensively on traffic tickets fines to fund public defense. This places law-enforcement officers in an untenable position. For example, a Louisiana sheriff may determine it is in the community’s best interest to focus the sheriff’s resources on preventing the spread of fentanyl. That decision to shift police personnel from traffic to drug enforcement may be a sound public safety decision, but re-dedication of such police resources would result in both a decrease in public-defense funding and an increase in the need for public defenders. Putting law enforcement in this position simply makes no sense.

During the regular session, which ends in June, Louisiana legislators should reinstate an independent board that is empowered to establish and enforce the indigent-defense policies necessary to protect Louisianans’ constitutional rights. Then they should get serious about joining the majority of states that solely fund public defense through a general fund appropriation.

Malcolm Jenkins is a co-founder of the Players Coalition co-founder and the 2017 winner of the NFLPA Byron “Whizzer” White Award.