2/9/2017 ‘It’s just not working’: Funding public defenders with user­pay system doesn’t make sense, many

ense, many officials say | News | theadvocate.com

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‘It’s just not working’: Funding public defenders with user-

pay system doesn’t make sense, many o牕�cials say
By John Simerman and Chad Calder jsimerman@theadvocate.com ccalder@theadvocate.com MAR 8, 2016 - 7:02 AM

Advocate sta¸ photo by TRAVIS SPRADLING -- Attorneys, most from the 15th Judicial DistrictÕs Public
Defenders O址�ce for Acadia, Lafayette and Vermilion parishes, listen along a ramp, background, in a full room
at the Louisiana Public Defender Board meeting Tuesday inside LSU's Hebert Law Center, as 15th Judicial
District Court Public Defenders O址�ce District Defender G. Paul Marx, foreground, speaks to the board about
recent sta¸ cuts made because of losses in state and local funding for legal representation for poor people
accused of crimes.

The parishes of Vernon and St. Charles may be four hours apart, but they could hardly be more similar when it comes to criminal matters.

Both have populations just shy of 53,000, and each saw one murder and a handful of robberies in 2014. The number of criminal cases ᝇ�led in each
parish that year was nearly identical, at about 1,600, court ᝇ�gures show. With three judges, the courthouse in St. Charles hosted three criminal
trials. Vernon, which also has three judges, held two.

There’s just one glaring difference: While the public defender in Vernon Parish has had to start turning away some defendants for lack of funds,
his counterpart in St. Charles Parish — with more than twice the staff — is doing just ᝇ�ne.

Story Continued Below

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St. Charles Parish Chief Public Defender Victor Bradley Jr. said it’s been years since he requested some of the extra money the state hands out to
public defenders in other districts.

“I’m just lucky; that’s all it is,” he said. “It’s not my brilliance. It’s being in the right place at the right time.”

The right place, it turns out, is where the rubber meets the road.

Unlike other states, Louisiana has a “user-pay” system for indigent defense: Roughly two-thirds of the funding comes from local court ᝇ�nes and
fees levied on the guilty. And three-quarters of that cash comes from trafᝇ�c citations, which have little to do with the work done by public
defenders. So St. Charles — home to parts of Interstate 10, U.S. 90 and U.S. 61 — remains 䶈�ush, while out-of-the-way Vernon goes begging.

Many say a system that relies on trafᝇ�c tickets is inequitable in the best of times and potentially catastrophic in the worst.

And these are decidedly not the best of times. Shifting law enforcement priorities have sent trafᝇ�c citations down since the beginning of the
decade, eating away some districts’ surpluses and putting others in the red.

The state’s budget crisis may compound the problem. The Louisiana Public Defender Board has a pot of money it distributes to local ofᝇ�ces,
typically providing about a third of their budgets. But last month, the board found out its recommended funding for ᝇ�scal 2017 will be $12.8
million — down from more than $33 million.

Jay Dixon, the ofᝇ�cial in charge of doling out that funding, testiᝇ�ed recently that local districts’ reserves had fallen from nearly $18 million in 2010
to about $6 million last year, and they continue to dwindle.

“We were in trouble even without the budget crisis that’s going on right now,” said John Lindner, chief defender in St. Tammany Parish. “This has
just made it worse.”

Defenders in retreat

Lindner said local revenue from tickets is down “dramatically.” His ofᝇ�ce is looking at a $200,000 shortfall for the year and probably will have to
start cutting back on services beginning in April. First on the chopping block likely will be juvenile cases and specialty courts handling drug, re-
entry, behavioral health and family uniᝇ�cation cases.

“These are all the courts where we try to resolve issues before they get into the criminal court system,” he said. “Those would be the ones we’d
have to cut ᝇ�rst.”

That’s already happened in Plaquemines Parish. Chief Defender Matthew Robnett started cutting last year, scaling back on drug court and no
longer hiring contract lawyers to handle cases where his ofᝇ�ce had a con䶈�ict of interest, which is not uncommon in a small district.

It wasn’t enough. By the end of March, only his ofᝇ�ce assistant will be working in the Belle Chasse ofᝇ�ce, keeping the lights on and the ᝇ�les
maintained to assist any pro bono attorneys appointed by the court. Robnett and the only other staff attorney in his ofᝇ�ce will be furloughed.

In New Orleans, Chief Public Defender Derwyn Bunton’s ofᝇ�ce, which saw a major drop in both trafᝇ�c ticket revenue and state funding this year,
began turning away most new violent felony cases last month, leaving dozens of arrestees without attorneys after a hiring freeze and the threat
of furloughs sent several of Bunton’s lawyers packing.

The attrition has swelled case loads for those who remain. Bunton’s ofᝇ�ce, where the budget has dropped from more than $9 million to about
$6.3 million in four years, has withdrawn from representing several clients who were assigned to those departed lawyers, rankling many of the
city’s dozen Criminal District Court judges.

As of Feb. 18, Bunton’s ofᝇ�ce reported that it has refused cases involving 34 criminal defendants, 28 of whom remain jailed. Another 41 clients, 24
of them behind bars, have been wait-listed.

The situation isn’t as dire in Jefferson Parish, but that’s largely because of a couple of well-timed windfalls. That ofᝇ�ce has been riding a $1 million
surplus for the past few years, along with $223,000 from a legal settlement over delinquent bail bond forfeitures.

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“I’d like to say it was good management, but it was blind luck,” Chief Public Defender Ritchie Tompson joked.

Still, Jefferson Parish used to write some 80,000 trafᝇ�c tickets a year. Now it’s more like 30,000. Tompson doesn’t question the shift in priorities,
but it will hurt him nonetheless. The workload his lawyers handle already has been climbing, and he’s had four quit in the past six months.

In tiny Winn Parish, north of Alexandria, District Public Defender Herman Castete said his ofᝇ�ce now has a waiting list. All that’s left of his staff is
himself, an investigator and a part-time secretary. He blamed a cutback in funding from the state board, from $170,000 to less than half that.

“Ain’t no way it can work. We don’t generate enough money in these little districts to be able to sustain ourselves,” he said. “If the governor’s
going to cut the money as much as they say next year, hell, we’ll be out of business. There won’t be a Public Defenders Ofᝇ�ce.”

Roots of the crisis

It is clear enough in some jurisdictions why public defense funding has taken such a hit.

Newell Normand, who took over as sheriff in Jefferson Parish in 2007, rebuilt his ofᝇ�ce after Hurricane Katrina with a focus on patrol units, not
trafᝇ�c enforcement. His agency’s staff is still 11 percent smaller than it was before the storm.

“We don’t take shortages in the Patrol Division,” Normand said. “It will occur in the Trafᝇ�c Division ᝇ�rst.”

He’s one of many local ofᝇ�cials who say funding public defenders from trafᝇ�c tickets doesn’t make sense. He pointed out the number of tickets
being written at any given time is susceptible to everything from bad weather to manpower issues.

“It’s not a revenue source that’s steady,” he said. “It’s affected by everything.”

Other district defenders cite a decline in ticket-writing by State Police troopers, at least in their parishes. A police manpower shortage is almost
certainly to blame for the drop in tickets in New Orleans.

The causes vary by district, said Dixon, the state public defender.

“It could be a local political race and they don’t want to upset the citizenry, so tickets drop. It could be a political tiff between the DA and a
sheriff. It could be a hurricane will completely wipe out revenue for months on end. Your priorities change. Trafᝇ�c tickets are not as important,”
Dixon said. “That’s the crux of the problem. It’s an incredibly unreliable revenue source because it’s subject to all sorts of vagaries.”

Lindner, in St. Tammany, said that diversion programs run by some district attorneys — in which defendants are placed in rehabilitation
programs rather than prosecuted — also have played a role in sapping revenue, making them a kind of double-edged sword that both helps and
hurts the indigent population.

The bottom line, for many defenders, isn’t why there are fewer tickets being written but why that should matter so much to the fundamental
right of criminal defense.

“Until we can come up with something other than this user-pay system,” Lindner said, “we’re going to face this crisis every so often.”

E. Pete Adams, executive director of the Louisiana District Attorneys Association, agreed that a decline in trafᝇ�c enforcement is a big part of the
problem. But he also argues that public defenders could be helping themselves in ways they haven’t been taking advantage of.

He said many public defenders have been lax in collecting a $40 application fee that indigent defendants are supposed to pay, unless they can’t
afford it. Judges also aren’t being vigilant in assessing arrestees’ need for free lawyers, he said.

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“The obligation to provide counsel to those who cannot afford a lawyer has now grown to, ‘We’re going to give free lawyers to everybody who’s
charged,’ ” he said.

Tompson, the chief public defender in Jefferson, said that even if his clients could pay the fee — and they can’t — the result wouldn’t be enough
money to change the fundamentals.

“That’s a DA red herring,” he said, “absolutely a DA red herring.”

What’s next

With service restrictions set to begin in earnest, judges in some parishes have tapped private attorneys to handle cases that public defenders are
turning away. That stopgap already has drawn a legal challenge in Orleans Parish that is likely to be repeated across the state.

Mark Cunningham, president of the Louisiana Bar Association, argued at a recent Orleans Parish court hearing that relying on the private bar to
handle indigents’ cases for free amounts to an unconstitutional “taking” of those lawyers’ property — namely, money.

Two months ago, the American Civil Liberties Union of Louisiana ᝇ�led a federal lawsuit naming the state board and Bunton, of Orleans Parish, as
defendants, but it is aimed at forcing court-ordered reform on the state in a brutal budget year.

“Right now is not the time to be asking anybody for money for anything without a court intervening,” said Marjorie Esman, executive director of
the ACLU of Louisiana, “We have clients who are sitting in jail without the beneᝇ�t of counsel.”

Esman said the lawsuit seeks to fund public defenders ofᝇ�ces “much the way prosecutors are. We don’t have DAs saying, ‘We can’t prosecute.’
The funding mechanism (for both sides) needs to be the same. There needs to be parity so there’s enough money to pay public defenders in
proportion to the population in that parish that relies on public defense.”

Tompson thinks that, sooner or later, that’s what it’s going to take.

“I’m not going to see it — I’m going to be long gone — but it’s going to be a state operation, like probation,” he said. “Eventually, the state is going
to have to take it over because the way it is, it’s just not working.”

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