As millions celebrate the Labor Day weekend, it is appropriate to raise the awareness of the plight facing a large portion of the hardest working lawyers in the country; America’s public defenders. One public defender, Tina Peng of Louisiana’s Orleans Parish, wrote in a Washington Post op-ed last week that her office receives cases for 85 percent of the people charged with crimes in the Parish, yet receives a third of the funding that the district attorney’s office does. The Justice Department estimates that 60 to as much as 90 percent of people in some areas who are charged with crimes cannot afford access to a private attorney. According to Peng, her office has a total of nine investigators to handle over 18,000 felony and misdemeanor charges every year. The American Bar Association recommends that public defenders take on roughly 150 felony cases per year, which Peng wrote, was half of her felony caseload in 2014. Peng, along with many others, believe that the funding crisis violates the Sixth Amendment’s requirement for adequate legal representation.
In a classic microcosm of the Bobby Jindal era, lawmakers in Louisiana believe that public defenders aren’t doing enough with the money they are allotted. Many locations, including in East Baton Rouge Parish, have begun prioritizing cases and restricting services due to funding crises. State Representative Alan Seabaugh (R-Shreveport) introduced legislation to remove the Louisiana Public Defender Board from oversight of costly death penalty cases, which account for $11 million of the state’s $33 million public defender budget while accounting for less than one-half of one percent of all cases in the state. As a response to the legislation, the eight-member Indigent Review Defense Committee was formed, consisting of former prosecuting and defense attorneys, judges, state attorneys, and a legislative auditor.
The committee is aimed at investigating the Public Defender Board’s standards, fiscal priorities, and potential conflicts of interest to determine if it is the financial burden of the death penalty cases that are causing the crisis, or if it is the result of fiscal mismanagement. Some like Pete Adams, executive director of the Louisiana District Attorneys Association, have blamed the board’s own mismanagement for the funding crisis. Adams said, “It has no incentive to be fiscally responsible,” and also saying “I don’t know of another agency in state government, or in any government anywhere, that when they run out of money, or when they start running short on money, they get to say, ‘I quit.’” Others like former Beauregard Parish District Attorney David Burton believe the funding crisis is actually a ploy by some defenders to “spend the state into submission” in order to abolish the death penalty in the state.
Missouri, another state under scrutiny for its criminal justice system in the wake of the Michael Brown shooting, is facing similar budgetary restrictions. The state’s Supreme Court ruled in 2012 that public defenders could refuse cases if they became excessively overburdened. Ranking 49th out of the 50 states in per capita indigent defense, the director of the Missouri State Public Defender System Michael Barrett wrote a scathing letter to the state’s Democratic Governor Jay Nixon last month, citing the multitude of times Nixon voted against additional public defender funding. Operating on a $38.4 million annual budget, Barrett noted Nixon’s lack of effort, writing that “the steps that you have personally taken to maintain the status-quo leaves the impression that you are not so much uninformed as you are unconcerned.”
Barrett also referenced the state’s national reputation in the wake of the Michael Brown incident and a recent Justice Department report that concluded that St. Louis County children have been repeatedly denied their Constitutional rights within the county’s family court system. Barrett added, “Given the unwillingness to provide an adequate defense for poor people, it is not surprising to me that taxpayers have had to, in turn, carry the enormous financial burden of an artificially inflated prison population that continues to rise despite the opposing national trend.” Hinting at a lawsuit if funding needs aren’t matched, Barrett and the public defenders are asking for a $10 million increase in the state’s 2015 public defender budget. For his part, Nixon has defended the current spending level, with a spokesperson noting that the state’s public defender system has received $2.3 million in increased funding between 2010 and 2015.
Neither a state-level funding crisis, nor the restriction of public defender services are issues reserved for Louisiana and Missouri alone. Like Missouri, Florida’s Supreme Court ruled in 2013 that the state’s public defenders’ offices can apply to refuse appointments based on overwhelming caseloads. At the time, Miami’s public defenders were averaging about 400 felony cases apiece, including up to 50 cases set for trial per week. Lawmakers in Tennessee are considering a bill to repeal a law in place since 1992 that mandates that public defenders receive a 75 percent match of every dollar of increased funding for prosecutors in the state. In June, the American Civil Liberties Union (ACLU) sued the state of Idaho, claiming that the state’s public defender funding level violates the Sixth Amendment, while creating an unfair balance between prosecution and defense. Leo Morales, acting executive director for the ACLU in Idaho, believes that “Elected officials have deliberately avoided deploying the funding and meaningful supervision that they know we need to actually fix Idaho’s disastrous system of public defense.”
Although actions like the Idaho lawsuit and Barrett’s threat of a suit may invoke some changes at the state-level, it is more likely that vocal pleas like Peng’s op-ed and national scrutiny will be the most effective cure for the funding crisis. Much like the Michael Brown incident, along with several others that followed, shone a light on the issue of police abuse; it will likely take a sense of American outrage to finally rectify the situation. America contains only five percent of the world’s population, yet 25 percent of the world’s prisoners. It is difficult to believe that there are five-times as many “bad” Americans per capita than that global average of humanity. If that were to be true, any belief in American exceptionalism would appear to be ridiculous. More likely, especially given the high percentage of indigent criminal defendants, systemic flaws have led to a status-quo that runs starkly counter to the system’s founding ideals, not to mention the Constitution.
Kansas City Star – Dave Helling
St. Louis Post-Dispatch – Alex Stuckey
The Advocate (Louisiana) – Maya Lau
Washington Post – Tina Peng