Thirteen people charged with non-capital crimes are suing the state of Louisiana, claiming they were denied their constitutional right to “effective assistance of counsel” because they couldn’t afford a lawyer of their own. The suit claims their government-appointed attorneys had insufficient time for their cases, and that some were denied a public defender altogether. The team of lawyers leading the lawsuit, who are working pro bono, believe the case could swell to tens of thousands of plaintiffs if a district court certifies it as a class-action endeavor in a hearing this April.
Led by four civil rights groups, the lawsuit details a criminal justice apparatus overwhelmed by cases, and draws attention to what has become a national problem.
Roughly 85 percent of Louisiana defendants require a public defender, according to the lawsuit. As the state with the highest incarceration rate in the country, Louisiana would need to hire four times its current number of public defenders to meet the national recommended standard (ABA Journal).
According to the lawsuit, the results of the deficit in public defenders are low-income defendants languishing in jail sometimes for months until a public defender becomes available. Those facing less serious charges are sometimes denied a public defender altogether, and encouraged to plead guilty regardless of the evidence against them.
“It’s the state’s obligation. If it’s going to jail you, if it’s going to deprive you of liberty and prosecute you, if you’re indigent, it has to provide a lawyer to defend you,” Lisa Graybill told WikiTribune. Graybill is a spokesperson for the Southern Poverty Law Center, one of the groups behind the lawsuit.
Under the Sixth Amendment of the U.S. Constitution, plaintiffs in the United States are entitled to a court-appointed attorney, free of charge, if they cannot afford to hire an attorney of their own. How court-appointed attorneys, or “public defenders,” are paid, however, is an ill-defined mandate. And no reliable legal enforcement mechanisms exist when state governments fail to fund public defenders.
With a near $2 billion budget deficit, Governor John Bel Edwards has essentially admitted Louisiana cannot afford to uphold its constitutional obligations while other social services are struggling with insolvency (NPR).
“When you’re talking billion-dollar shortfalls … the hospital is going to win (funding) every time,” said Lindsey Hortenstine of Orleans Public Defenders.
Louisiana is hardly the only state to struggle with the responsibility of ensuring legal representation for low-income offenders. Missouri and Utah, for example, faced their own ACLU lawsuits with similar allegations of constitutional neglect – neither case resulted in significant increases to the states’ public defense budgets.
The current class action lawsuit in Louisiana was crafted in the wake of previous attempts of reform the public defender system via litigation. The main lesson is not asking for too much from the court.
After hearing a separate lawsuit led by the American Civil Liberties Union in 2016, a federal judge acknowledged that Louisiana’s public defender system violates the constitution. The judge called the lawsuit “laudable” but ultimately dismissed the case, saying he couldn’t dictate what he saw as a state issue.
Drawing a lesson from the ACLU case, the current lawsuit avoids federal court and focuses on forcing a state court to acknowledge the status quo cannot continue.
“We’re not asking a judge to tell [the state] how to fix (the problem) – we’re just asking the judge to tell them that under the law they cannot continue to maintain this constitutionally deficient system,” said Graybill.
Shifting financial burden to states
Despite its constitutional mandate, the federal government funds public defenders only in cases involving federal crimes. State governments are left to fund public defenders for state-level felonies, which made up 87 percent of convictions in the United States in 2015 (Bureau of Justice Statistics).
Along with 25 other states, Louisiana relies on local governments to fund public defense. Civil rights groups, such as the SPLC, want Louisiana’s state government to assume a larger role in paying for public defenders. How to enforce adequate funding, however, is not clear in the law.
The concept of public defense proliferated after 1963 when the U.S. Supreme Court ruled in Gideon vs. Wainwright that anyone accused of a criminal offense has the right to legal counsel, even if they’re unable pay for a lawyer. At the time, legal counsel provided by the government was assured for federal crimes. But with Gideon vs. Wainwright, the Supreme Court expanded the concept of public defenders to state courts.
The court, however, never dictated who would pay for and administer what was essentially a new entitlement program. How much funding warrants adequate legal counsel was also not specified. The responsibility of public defense defaulted to the states, and Washington, D.C. Soon, 51 governments established their own systems of allocating funds for public defense with little uniformity. 26 of these state governments kicked much of the responsibility to local governments (ABA Journal).
Louisiana became especially creative, setting up an unusual system of relying on traffic and parking tickets to fund public defender offices. The result is a system with a budget that depends on how many drivers are ticketed for violations (The Advocate).
New York as a model for improvement
Like Louisiana, New York historically relied on local counties (roughly equivalent to Louisiana “parishes”) to fund public defense. Similar to the Bayou State, a number of New York county governments fell behind.
It took seven years for the fives counties to begin implementing structural changes to avoid another caseload nightmare. Eventually, the Hurrell-Harring vs. New York ruling was extended beyond the five counties. With allocations in the 2018 state budget, Governor Andrew Cuomo and the state legislature expanded the reforms throughout the entire state.
“The state stepped up,” said Andrew Davies, a senior policy analyst for New York’s Office of Indigent Legal Services. “This is the most exciting moment for public defense in New York since 1963 when Gideon passed. No question whatsoever, it’s a seismic shift.”
When Hurrell-Harring vs. New York is fully implemented in 2023, the state of New York will reimburse county public defender offices that surpass the recommended caseload limit. In theory, this will prevent the kind of backlog of cases involving un-represented, low-income defendants that led to the class action lawsuit in Louisiana.
There is no “magic bullet” for solving public defense issues, said Jon Gould, a professor in the School of Public Affairs and the Washington College of Law at American University and an expert in public defense. “There is no superior system for funding,” he said. “It comes down to political will and whether the elected officials in the state recognize their constitutional duty.”