Right now, countless indigent defendants in New Orleans, Louisiana, have been sitting in jail for weeks or even months as they wait to be appointed counsel. At the same time, the city’s public defender’s office is desperately fighting for a higher budget. Without one, the fate of confined citizens awaiting trial—mostly from communities of color—is unclear and bleak.
More than three years after the Louisiana Public Defender Board was sued for putting clients on a waitlist due to an attorney shortage, public defenders in New Orleans are still fighting for increased funding. The Supreme Court has long recognized that criminal defendants facing jail time who can’t afford an attorney have the right to be appointed counsel at the government’s expense. However, actually gaining access to such counsel can be difficult, especially if a person lives in a county with an underfunded or nonexistent public defender’s office.
“Public defenders are uniquely situated in our adversarial system to intervene at points where it really matters for clients,” said Premal Dharia, the founder and director of the Defender Impact Initiative, an organization that works to transform the criminal justice system by collaborating with public defenders. “[Public defenders] hold prosecutors and police accountable by bringing to light issues of police misconduct that we now know often lead to wrongful convictions. Only public defenders can have a real impact in terms of people being able to return to their communities. They can change the course of cases.”
Former U.S. Attorney General Eric Holder once called the insufficient level of criminal defense for low-income people a “crisis.”
“Too many defendants are left to languish in jail for weeks, or even months, before counsel is appointed,” Holder said in a speech at the American Bar Association’s Annual Summit in 2012. “Too many children and adults enter the criminal justice system with nowhere to turn for guidance—and little understanding of their rights, the charges against them, or the potential sentences—and collateral consequences—that they face.”
Public defenders in New Orleans know this problem all too well.
Fighting for a share of the local budget
A 2017 American Bar Association study about the caseloads of public defenders in Louisiana found that the underfunded defense system only had the ability to handle 21% of its annual workload—without funding to hire more attorneys, defenders are spread too thin to manage the high volume of cases. More recently, the New Orleans Public Defender’s Office urged the City Council to triple its budget in 2020. The office provides legal representation to nearly 90% of criminal defendants with a budget of less than half of what the DA’s office receives. In 2019, the public defender’s office had received only $1.8 million in funding. During the most recent budget cycle, the agency asked the city for $5.5 million, arguing that the asking price was 85% of what district attorney’s office receives for the same caseload. Ultimately, the agency was granted a total of $2.5 million in city funding for 2020.
Since DAs are largely elected officials, while public defenders are more commonly appointed, the funding disparity between the two offices isn’t surprising to many attorneys.
“Public defenders do not have the same kind of constituency and political power that the DAs have built over time,” said New Orleans Chief District Defender Derwyn Bunton. “The narrative that has been built over the years is that district attorneys are a public good and that public defenders are a necessary evil. That narrative makes the votes to give support to public defenders more difficult.”
With the lack of revenue, New Orleans Public Defender’s Office has expressed fears of a possible hiring freeze, layoffs, and cuts to services. The inequity has angered attorneys and advocates, who say the unequal level of funding dramatically fuels racism and mass incarceration.
“Generally, it is no coincidence that our clients are largely African American, men, Black, and brown folks who don’t have any money and need our help and legal support,” Bunton said. “It seems to be no problem for city officials to create a new crime, add more police, or provide more funding to district attorney’s whose job it is to seek them out, jail them, and prosecute them.”
Although the office has already been given a budget for 2020, the fight for additional resources hasn’t ended. Until the public defender’s office in New Orleans becomes the necessary size to be able to work proficiently, ethically, and constitutionally for clients, attorneys say they will continue to rally supporters in the community. In the meantime, the office is managing its workload by limiting the number of investigators assigned to certain cases.
A national crisis
Public defenders in Louisiana aren’t alone in their fight. In 1963, the U.S. Supreme Court issued a ruling that required all states to provide free defense for defendants who are unable to pay. Despite this ruling, there is no federal mandate for how counsel should be provided, how much money should be allocated for public defense, or where the resources should come from. The absence of a unified system has led to disparate approaches among various states and counties.
Some agencies, like the ones in Missouri, get their funding from the state. Public defenders are overworked, but legislation that would have capped their workloads and allocated additional funds to agencies has been consistently blocked. States like Wyoming are dealing with the crisis by solely appointing public defenders to felony cases.
Michigan also has a beleaguered public defense system. In 2016, the State Appellate Defender Office said they found that the state’s efforts to allocate resources were insufficient and that it incarcerated defendants at high rates who had convictions that were later overturned. Earlier this year, a public defender’s office finally opened in Jackson County after the threat of a lawsuit by the county. Up until that point, public defense services were only provided through contract positions.
The situation in the South isn’t much better. Only eight of the 82 counties in Mississippi have a public defender’s office. Last year, the Sixth Amendment Center published a report on Mississippi’s record of defending indigent clients. It found that the state only provides funding for capital cases. For lower-level offenses, local cities and counties are stuck with the bill.
“Public defender offices are not consistently structured around the country,” Dharia said. “I’m acutely aware of what public funders want to be able to do and need the resources to be able to do. I think people are starting to realize that public defenders can play a significant role in challenging our system of mass incarceration, and in reducing the number of people that are directly impacted and harmed by our system. We’re hopefully starting to see a change with people realizing that funding is essential for everybody.”
Travis County’s fight to open a public defender’s office
The largest city in the U.S. without a public defender’s office is Austin, Texas. Instead, an independent agency has assigned and paid a flat fee to local private attorneys to provide counsel to defendants who can’t pay. For years, those attorneys have struggled to manage enormous caseloads. A 2017 study by Grassroots Leadership found that the likelihood of someone being held in Travis County Jail increased for those who were appointed counsel rather than paying to retain a private attorney themselves. In response, organizers rallied attorneys, formerly incarcerated citizens, and other advocates to push for a centralized public defender’s office with dedicated attorneys. The Texas Fair Defense Project, an organization that aims to fight for fairness within the criminal justice system, spearheaded the effort.
“This wasn’t a novel idea that suddenly came into fruition after it was executed upon,” said Amanda Woog, the executive director of the Texas Fair Defense Project. “Austin has been catching up with every major city in the United States and was late to the game. For some people, this process has been years, if not decades, in the making.”
Advocates spent months making their case in front of the Travis County Commissioners Court in 2018, where judges were initially skeptical of the idea.
“The argument from the other side was, ‘We already have an underfunded system. Why don’t you just make the current system better instead of diverting funds from other underfunded areas?’” Woog said. “That argument was always used as a way to end the conversation about the public defender office, rather than to engage in conversation about how resources would be distributed throughout the entire system.”
But when The Texas Observer published an article in March that criticized the city’s lack of a public defender’s office, the judges began to change their tune. In August, the state’s Indigent Defense Commission finally approved a four-year grant to establish a public defender’s office in Travis County. The new Travis County office will be responsible for defending approximately one-third of the county’s low-income defendants. The remainder will continue to be handled by private attorneys.
For Annette Price, the issues surrounding access to public defenders are both professional and personal. Price was one of the handful of formerly incarcerated activists who fought for the new public defender’s office in Travis County. At the age of 20, she was convicted of a murder in Illinois and sentenced to 75 years in prison. It was her first offense. Price was tried and convicted within five months. During that time, she says she only saw her public defender three times.
“I trusted this person with my life,” Price said, referring to her public defender at the time. “I trusted that this person knew the law because he was assigned to represent me. I had no idea about the legal system at the time.”
Price’s sentence was eventually reduced to 40 years, and she was released in 2005 after 25 years behind bars. She currently works as the Interim co-Director of Grassroots Leadership. Through her advocacy work, she hopes to dramatically reduce the number of people sitting in jail.
“When a person makes mistakes and they’re not able to pay for a high-priced attorney, we need to make sure we’re giving them an opportunity to have an adequate defense,” Price said. “I’ve seen defendants come in and their public defender already has paperwork for a plea bargain. It’s the first time they’re meeting their client. How is that an adequate defense? If they got more funding or if they were paid differently, maybe they would put in more effort.”
Although it took months of planning and organizing to get a public defender’s office approved, organizers in Texas still want to encourage people to advocate for one in their own areas, assuming their county needs one.
“[Fighting for a public defender’s office] cannot and should not be done without people who are directly impacted by the system at the table,” Woog said. “Those people have not really been brought into the conversation in the past. Get those people to the table, and also think broadly about the coalition that you want to build. When people who are working within a system tell you that the system is fine, or that they don’t need your help improving it, be skeptical about that.”
But despite the ongoing adversity that public defender offices face around the country, some attorneys are still optimistic.
“I remember when it was simply a foregone conclusion that there wasn’t going to be any support for public defense,” said Bunton. “No one cared how constitutional the representation of poor people was in Louisiana, New Orleans, or anywhere else for that matter. The idea that you can’t build a constituency or that you can’t build community power to build fairness in our criminal legal system is false.”