New Orleans faces a "constitutional crisis": Chronically underfunded public defenders are now being forced to turn away clients

Those accused of crimes in New Orleans have a legal right to counsel — in theory, at least

Published January 15, 2016 6:32PM (EST)

On Wednesday night, Douglas Brown allegedly jumped over the counter of a New Orleans Subway after ordering a sandwich, according to the Times-Picayune, but was foiled in his attempt to nab the cash register drawer because it was tethered into place. Instead, he grabbed a bunch of cash and ran. He was detained 25 minutes later.

It's unclear who will represent Brown. Yesterday, the Orleans Public Defenders refused to take his case. The underfunded office, which says it represents nearly 85-percent of all defendants in the parish but has a budget just half the size of the district attorney, simply can't handle any more.

“Our workload has now reached unmanageable levels resulting in a constitutional crisis,” Chief Defender Derwyn Bunton said in a December statement, giving one month's notice that they would start refusing some clients charged with felonies carrying long sentences. “As Chief Defender, I can no longer ethically assign cases to attorneys with excessive caseloads or those that lack the requisite experience and training to represent the most serious offenses.”

This week, Bunton's office made good on that pledge and began refusing clients. In response, the American Civil Liberties Union and the ACLU of Louisiana last night filed a class action lawsuit in federal court against Bunton and Louisiana State Public Defender James Dixon on behalf of plaintiffs who were assigned public defenders but then placed on a waiting list.

“So long as you’re on the public defender waiting list in New Orleans, you’re helpless. Your legal defense erodes along with your constitutional rights,” said Brandon Buskey, Staff Attorney with the ACLU’s Criminal Law Reform Project, in a statement. “With every hour without an attorney, you may forever lose invaluable opportunities to prove your innocence. You also may be forced into a crippling choice between waiting months for counsel or doing bail and plea negotiations yourself. The damage to your case can be irreparable.”

Mayor Mitch Landrieu maintains that while the city has increased its funding of the office that they have "barely kept pace with state funding cuts," the Times-Picayune reports. The defenders contend that "the additional local funding is enough to stave off mandatory furloughs, but not enough to provide representation in serious felony cases that is constitutional or ethical." Bunton and Dixon could not be reached for comment.

It's an odd lawsuit in the sense that the ACLU doesn't believe that the defenders are at fault.

The ACLU is asking a judge to find that the waiting list violates the plaintiffs' rights to counsel, due process and equal protection under the Sixth and Fourteenth Amendments. If a judge agrees, says Buskey, that will put the state legislature on notice. If the legislature doesn't get the message, he says, they can ask the judge to insist on adequate funding.

“We want to highlight the fact that there are people right now suffering while we go through all these funding shortages,” says Buskey. “Our hope is that by doing that we really put pressure on the state to fix this inherently unreliable user-funded system.”

The ACLU charges that “the public defender’s budgetary crisis and its denial of counsel...result from the State of Louisiana’s chronic underfunding of its public defender system,” which “relies on locally generated fines and fees for revenue.” According to the ACLU, “approximately two-thirds of the state’s budget for public defenders comes from a $45 fee assessed primarily on traffic tickets. No other state in the nation is as dependent on local fines and fees to fund indigent defense.”

The ACLU alleges that some defenders in the state have pressured sheriffs to increase traffic enforcement. According to Al Jazeera America, nearby St. Charles Parish benefits from eight major highways crossing through and has plenty of traffic ticket and court cost revenue to fund its public defender budget.

Public defender offices around the country complain of inadequate funding. In Louisiana, public defender offices representing poor people in Winn, Lafayette, and St. Bernard parishes have also reported wait lists, says Buskey.

"The right to counsel is an empty constitutional promise without adequate funding," emails Cardozo School of Law professor and ethics expert Ellen Yaroshefsky, who testified in November on behalf of the defenders. "Clients languish in jails and plead guilty (often when they are not) when competent lawyering might have secured their release. They rarely see their lawyers and they may be found guilty at trial because of lack of money to investigate a charge. It is an impossible situation for lawyers who care deeply about providing zealous advocacy and certainly for the clients who are in dire need of counsel. It is the responsibility of the courts and the legislatures to insure that the system has some measure of integrity in providing right to counsel. Poor people of color—the overwhelming number of accused-- have the right to counsel that should not be merely an empty promise."

According to Al Jazeera America, one Orleans Parish defender resolved roughly 400 misdemeanor cases each month even though the American Bar Association recommended that defenders handle just 400 per year.

Innocence Project co-founder Barry Scheck also testified last year, according to Al Jazeera America, noting that inadequate representation for poor people made it more likely that innocent people would be convicted for crimes they did not commit—a major problem in New Orleans and elsewhere.

Poor people are denied strong legal representation across the country. But New Orleans' system appears to one of the most dysfunctional, and must represent clients in a city that has long had one of the country's most notoriously backward criminal justice systems (though there have been improvements reported in some areas). Its also one of the most active ones: New Orleans, according to Buzzfeed, has the highest incarceration in Louisiana, and Louisiana reportedly boasts the highest incarceration rate not only of any state nationwide but also higher than any country in the world.

The criminal justice system excels at putting large numbers of of young black men in prison. It fails, the ACLU alleges, to provide these defendants with their constitutional right at a fair shot in defending themselves.

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By Daniel Denvir

Daniel Denvir is a writer at Salon covering criminal justice, policing, education, inequality and politics. You can follow him at Twitter @DanielDenvir.

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Aclu Aol_on Criminal Justice Criminal Justice Reform New Orleans