Equal justice depends on properly funding public defenders

Sen. Kamala Harris (D-Calif.) recently introduced the Equal Defense Act, which would boost resources for public defenders across the country. It offers a $250 million grant program on top of case limits for public defenders.

A longtime prosecutor, Harris understands that a fully functional and adequately funded public defender’s office is essential to the pursuit of justice and for ensuring safer communities and families. The promise of Gideon v. Wainwright, the 1963 Supreme Court decision guaranteeing everyone a right to counsel, is meaningless without an adequately staffed office of dedicated attorneys to keep that promise.

{mosads}Right now, New Orleans faces a public defense crisis. We’ve been here before. After Hurricane Katrina, the public defender system in New Orleans collapsed and had to be recreated from scratch. A committed group of lawyers and community members did so. But, since then, the system has been in constant danger of failing because the office lacks money.

The Orleans Public Defenders Office (OPD) handles 85 percent of criminal cases and is responsible for thousands of municipal and traffic court cases each year. Yet OPD receives just one-fifth of the local appropriation provided to the district attorney. This year, the OPD anticipates a $1.1 million deficit. The chief public defender already is cutting back on hiring outside counsel. Firings and salary reductions could be next.

In 2012, the OPD laid off attorneys because of a budget shortfall. In 2015 and 2016, budget shortfalls led public defenders to withdraw from cases — including that of a defendant charged with murder who has been waiting in jail for five years to go to trial and has had six different defense lawyers. His case is still pending.

This is what happens when state and local governments do not adequately fund criminal defense. In Louisiana, the system is paid for by the very people who can least afford it — the defendants, who are often the most vulnerable people in society. Not only do clients pay a $40 application fee, they also owe a $45 “guilty fee” if they are found guilty or plead guilty. These are perverse incentives for any attorney. They are especially bad in a state where over two-thirds of public defender funding comes from such fines and fees.

Elsewhere, public defense is also funded by criminal and civil fines and fees with no coverage for overhead expenses and a financial disincentive to put in extra time or hire experts.

Some people may argue that the OPD has a choice. They could take on cases without adequate resources. They could provide representation, as subpar as it might be. Some lawyers object to the elimination of fees because it takes away from their bread and butter.

It’s true, the Orleans Public Defenders Office does have a choice. These lawyers choose public defense because they are committed to justice and equality. Louisiana also has a choice. It chose not to improve public defense funding — despite over a decade of warning. This choice hurts the poorest people in one of the most incarcerated states in the world.

In a single year, the OPD’s work to combat over-detention saved 12,022 days of incarceration for its clients and community. This equaled $293,217 of savings for the state of Louisiana. In 2018, New Orleanians paid over $213 million to arrest and prosecute presumptively innocent people, but spent just $1.5 million to ensure accurate, fair and zealous representation.

Sen. Harris is correct that public defenders need equal funding to ensure justice is complete. In an adversarial system, we cannot expect justice when one side has both hands tied. We know that public defenders work. It’s an easy investment to make.

Equal justice depends on adequate, equitable resources for public defenders. The representation of individuals charged with a crime is a serious matter that concerns everyone — communities, families, courts, prosecutors, judges and law enforcement.

Pamela Metzger is director of the Deason Criminal Justice Reform Center and professor of law at SMU Dedman School of Law in Dallas, Texas. Previously with Tulane University School of Law in New Orleans, she worked to help 8,000 indigent defendants left incarcerated without legal representation after Hurricane Katrina in 2005. Follow her on Twitter @ProfPamMetzger.