Public defenders – where art thou?
Budget cuts in funding for public defenders in New Orleans have caused many indigent citizens to be denied their Sixth Amendment constitutional right to appointed counsel.
Photo by East Baton Rouge Office of the Public Defender.
The lack of public defenders in New Orleans, Louisiana has spurred a new class action lawsuit filed by the American Civil Liberties Union (“ACLU”) approximately two weeks ago. The group is arguing that recent cuts in the city’s budget have caused citizens to remain in jail without a lawyer being appointed or to alternatively accept a plea, which many times will be detrimental to their case. Additionally, citizens in need of appointed legal counsel are being placed on a waiting list. The group argues that these consequences are due to a serious shortage of public defenders.
The lawsuit was filed against the New Orleans Public Defender’s Office and the Louisiana Public Defender Board on January 14, 2016, alleging constitutional violations. The ACLU argues that the lack of public defenders in Louisiana being appointed for citizens in need of counsel is a violation of the citizens’ constitutional right to counsel under the Sixth Amendment to the United States Constitution. The group is also arguing that the Fourteenth Amendment right of due process and equal protection are being violated by the lack of available appointed counsel. This lawsuit in Louisiana is just one of many lawsuits that have been brought in other states, including California, Missouri, Florida, and Idaho. These lawsuits highlight the need for more funding in Public Defender Offices across the country.
It was not until 1963, with the decision of Gideon v. Wainwright, that the United States Supreme Court established the right to appointed counsel in almost all criminal proceedings.
The importance of having a lawyer cannot be understated. The Sixth Amendment reads in part, “[I]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense.” The right to appointed counsel was recognized in federal court beginning in 1938 in the case Johnson v. Zerbst. Unfortunately, it took several years for states to catch up appointing counsel to defendants. It was not until 1963, with the decision of Gideon v. Wainwright, that the United States Supreme Court established the right to appointed counsel in almost all criminal proceedings. Prior to this decision, criminal defendants who could not afford a lawyer were essentially powerless against the criminal justice system.
The case in Gideon began with Clarence Earl Gideon being arrested for allegedly breaking into pool hall with the intent to steal money from vending machines, which was a felony under Florida law. Gideon requested a lawyer to be appointed for he could not afford one, but his request was denied as state law only required court-appointed lawyers for capital cases. Gideon therefore conducted his own defense at trial, despite having no legal education. He was found guilty and subsequently sentenced to five years in prison for the offense. Gideon then filed a habeas corpus petition, a writ that requires law enforcement officials to offer justification for a person’s detention, with the United States Supreme Court.
Writing for the majority of the court, Justice Hugo Black explained, “[T]he government hires lawyers to prosecute, and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.” The United States Supreme Court thus recognized in this case that having a lawyer was a fundamental right under the Constitution guaranteed to all criminal defendants. Ultimately, Gideon was eventually given court-appointed counsel, retried, and acquitted on all charges.
Public defenders are a check on the government’s power in the criminal justice system, requiring the government to prove each element of an offense.
This important history of appointed legal counsel in the United States obviates how vital this current public defender crisis in Louisiana really is. Public defenders are a check on the government’s power in the criminal justice system, requiring the government to prove each element of an offense. Additionally, Public defenders provide essential guidance and counseling to vulnerable and underserved citizens of the community, who often have limited knowledge of how the criminal justice system operates.
After news broke of citizens being turned away from the Public Defenders Office in Louisiana, New Orleans Chief Defender, Derwyn Bunton, explained on behalf of the Public Defender’s Office why certain defendants were being put on waiting lists for representation, while others were being denied representation completely. Bunton stated that one lawyer in the office was handling 147 felony cases as of November, while another lawyer was handling 125 felony cases. This translates to public defenders having approximately seven minutes to prepare for each case. These numbers significantly exceed the national standards for public defenders as promulgated by the American Bar Association.
Further exacerbating the issue, the office has lost approximately eight lawyers since the summer of 2015 and is currently on a hiring freeze due to financial constraints. There has also been a $700,000 reduction just this year in funding from the Public Defender Board, also named as a defendant in the ACLU lawsuit. The office warned the city for months prior about the impending predicament, but the funding finally ran out two week ago. When this happened, the ACLU lawsuit was filed because some defendants in need of counsel are now being turned away completely.
Even despite the city’s attempt in increasing its funding this year to approximately $1.5 million, the funding for the Public Defender’s office only amounted to about twenty-five percent of what the city contributes to the funding of the District Attorney’s office.
In a unique financial structure, citizens of New Orleans are the main sources of funding for the Public Defender’s Office. This funding comes from fines paid to the city, mostly due to traffic offenses, although the city of New Orleans does contribute in small part to the funding. The main issue with this system is reliability. It is extremely difficult to predict the amount of the city’s contribution based on varying numbers of fines collected on traffic offenses each year.
Even despite the city’s attempt in increasing its funding this year to approximately $1.5 million, the funding for the Public Defender’s office only amounted to about twenty-five percent of what the city contributes to the funding of the District Attorney’s office. Echoing the thoughts of the legal community in New Orleans, Chief Defender Bunton said, “[I]t’s now time for the state to step up. We cannot fund the Sixth Amendment on traffic violations.”
Brandon Buskey, an attorney with the ACLU, stated in response to the current lack of representation, “[S]o 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.” If a court rules in favor of the plaintiffs, the court could issue a declaration that the current funding system for public defenders is unconstitutional. If this were to happen, state legislators would be required to overhaul the current funding system for appointed counsel.
However, state legislators have already warned that this may not be on the top of their agenda for next year’s budget. Louisiana State Senator and Chairman of the Senate Finance Committee, Eric LaFleur, has stated that although public defenders have gotten the attention of the legislature, “[t]he fiscal situation remains the same. With the budget deficit, people who commit crimes are still a low priority.” So as the public defender system in New Orleans hits a breaking point, citizens charged with a criminal offense who cannot afford an attorney will have to look elsewhere for help.
