The ruin of many a poor boy
A crisis in Louisiana’s courts is emblematic of broader pathologies in both the state and American justice
The Economist | Mar 10th 2016 | NEW ORLEANS
OF THE shackled, jumpsuited defendants making their first appearance in the New Orleans criminal court, the first to rise in the dock was relatively fortunate. Up for possession of drugs, he was deemed indigent, and the city’s public defender was appointed to represent him. After a brisk back-and-forth of previous convictions and mitigating circumstances (a baby on the way, a job), bail was set at $5,000. The next man’s predicament was grimmer. Barely speaking English, he too was deemed indigent; but because his alleged offence—sexual battery—was more serious, the public defender reluctantly declined to represent him. Which means that, for the time being, no one will.
He is not alone. At the last count, 52 people were stuck in jail in New Orleans without representation; a further 27 lacked counsel but are out on bail. The problem is that, while these defendants can’t afford lawyers, the lawyers say that, after drastic budget cuts, a hiring freeze and a spate of resignations, they can’t afford to act for the defendants. In 2010 the public defender’s office of Orleans Parish (coterminous with the city) employed 78 lawyers; since its budget fell by a third, it has 42, for an annual caseload of 22,000. In January the office began to refuse new clients accused of serious crimes, such as armed robbery and murder (capital cases are an exception). The rationale is that these graver accusations require resources the office cannot provide. In a city where 85% of felony defendants are considered indigent, the numbers are rising fast.
“It’s terrible,” acknowledges Derwyn Bunton, the parish’s chief public defender. Mr Bunton grew up in poverty; several of his relatives have been through the courts. Like most of the clients his team serves, he is black. Yet he decided he was “not going to be complicit in the injustice” of providing inadequate defence. The tipping-point was the story of a man arrested for a multiple shooting in a city park. The man hired a private lawyer, who hired an investigator, who unearthed videotape proving he was in Houston when the crime was committed. Mr Bunton was “not sure we would have made it” before the tape was erased. The issue at stake, he says, is “Do poor people deserve equal justice? Do poor people deserve justice at all?”
It isn’t only New Orleans. Jay Dixon, the state public defender, says offices in 13 districts have imposed restrictions on their services; the one in Plaquemines Parish temporarily closed altogether. G. Paul Marx, a veteran defender whose office covers Acadia, Lafayette and Vermilion Parishes, says his payroll has declined from 62 lawyers in early December to 16 now. He estimates the number of defendants without representation at a whopping 2,300, rising by 300-400 a month (most are out on bail). Mr Marx calls the situation a “man-made disaster”. The cause of this widespread denial of basic rights—the sort of derogation which, if it happened abroad, would be denounced by American diplomats—is the volatile and eccentric way those rights are subsidised.
Louisiana is broke. Its legislature and new governor, John Bel Edwards, are struggling to repair its ruined finances, a mess many attribute to the doomed presidential ambitions and concomitant tax-cutting of Mr Edwards’s predecessor, Bobby Jindal. Like that for other essential services, state funding for public defenders is set to be severely squeezed. That will exacerbate the malaise, but is not its main cause, since roughly two-thirds of their income comes from a different source: punitive court fees and fines, including those for traffic offences. For various reasons—revised police priorities, pre-trial diversion programmes—in some parishes, such as Orleans, this revenue has crashed, though it has held up in places with lucrative stretches of highway. The state’s contribution was already too measly to compensate.
The trouble with these funding arrangements is not just that they are unreliable. They are also ridden with conflicts of interest, even or especially when the cash is flowing. Not just public defenders but Louisiana’s sheriffs and prosecutors, and the courts themselves, subsist partly on fees, fines and bonds imposed largely at judges’ discretion, mostly on defendants who plead or are found guilty. Thus, in a perverse reversal of the usual formula, public defenders routinely work on a “No lose, no fee” basis. Hurrying through cases benefits everyone. The risks were highlighted by a still-rumbling scandal over the judicial expense fund of the Orleans criminal court, meant to cover overheads using the court’s share of the revenues. An auditor’s report in 2012 found judges had spent hundreds of thousands of dollars from the fund on medical bills and insurance. The district attorney who blew the whistle recused himself from investigating, since he had enjoyed similar perks when he was on the bench.
The system bears an unfortunate resemblance to an extortion racket. Payments are often made on a schedule; people who miss them are liable to be locked up, alternatives known as “pay or stay”. Ashton Brown, for example, owed $500 arising from a theft conviction in 2013; he was also liable for probation-service fees. Arrested last year for possessing drugs, he was detained for an extra two weeks because of the old debt. The constitutional requirement to assess his ability to pay was ignored. Eventually his friends and grandmother came up with $100 to get him out. “It’s crazy,” says Mr Brown, who has yet to clear the debt (his record makes it hard to find work). He is among the plaintiffs in a suit filed by Equal Justice Under Law, a pressure group, alleging that Orleans Parish maintains an “unjust modern debtors’ prison” and that its officials “fund themselves off the backs of New Orleans’s poorest.” A court, says EJUL’s Alec Karakatsanis, “is supposed to be where justice is done, not where revenues are generated.”
In its criminal-justice excesses, as in other things, Louisiana is an outlier. Its incarceration and murder rates are the highest in America. In New Orleans, where malpractice has discredited both the police and prisons, both the violent-crime and imprisonment rates are double the national average. Yet these problems, while extreme, are also typical. Although no other state relies predominantly on court revenue to fund public defenders, many are overburdened; in the past, lawyers in Florida and Missouri have turned away clients, too. Unethical punishments are not uncommon: a judge in Alabama was recently suspended for ordering defendants to donate blood in lieu of money. The milking of poor communities by police and the courts, and enforcement of debts with jail time, were a factor in the unrest in Ferguson.
The underlying causes are typical, too. Chief among them is an old imbalance between, on the one hand, a fearsome appetite for prosecuting and jailing people, and, on the other, a reluctance to foot the bill. At least, to foot it up-front: shortchanging public defence, like some other seeming economies, is actually expensive, leading as it does to miscarriages of justice (Louisiana’s exoneration rate is the country’s second highest), longer sentences and so a higher, pricier prison population. Underneath that, says Jim Craig of the Roderick & Solange MacArthur Justice Centre in New Orleans, lies an “unAmerican belief that people who are charged with crime are a lower breed of human beings.” In the South, that view has a racial tinge. Mr Bunton ascribes the state’s stinginess in part to a hunch that indigent defence is “only a right that poor people of colour need.”
For now, in Louisiana, some of the slack is being taken up by private lawyers, whom some judges are ordering to defend cases pro bono. This fix has two obvious drawbacks: many of the lawyers don’t like it; and many are ill-qualified. Jack Bailey, who runs a personal-injury firm in Caddo Parish, says five felony cases were foisted on it last year, even though his three colleagues have no expertise in criminal law. He worries not only about the “expropriation” of his property in the form of their time, but also—after he exonerated two defendants—that innocent people will be failed by less assiduous lawyers, who may be inclined to prioritise paying customers. “Nobody cares about this”, Mr Bailey laments, “until it’s them.” It is absurd, he thinks, that this constitutional duty “should be inflicted on a small number of people who happen to have law licences.”
“If the right to counsel means anything,” says Marjorie Esman of the ACLU, a lobby group, “it means the right to a lawyer who knows what they’re doing.” The ACLU is suing Mr Bunton and Mr Dixon in a federal court, with the aim of having the situation in Orleans Parish declared unconstitutional. That manoeuvre suggests one possible outcome to this crisis, since such a ruling could eventually lead to remedial action by the state or federal government. Another is that a court finds Mr Bunton in contempt (some judges have threatened as much); the unserved defendants get lawyers, albeit in name only; and Mr Bunton winds up in jail himself.
There is a third possibility. Without lawyers, the cases of those languishing in prison will not be able to proceed. Sooner or later someone will file motions for their release; judges may have little choice but to comply. Legions of alleged killers and rapists walking free might just be embarrassing enough to galvanise reform.