‘RIGHT TO AN ATTORNEY?’

Louisiana Can’t Afford to Pay for Public Defenders, So Inmates Are Pleading Guilty

Poor defendants often face a choice: languish in jail waiting for representation or tell a judge they’re guilty. A new lawsuit, the largest of its kind, could change everything.

NEW ORLEANS—Michael Carter has spent more than a year and a half in jail waiting for a trial. Even still, the 27-year-old smiles easily when telling his story. His face is framed by an 8-by-4 inch window that separates the inmates at East Baton Rouge Parish Prison from their visitors. Like most people standing in the caged area of the visiting room, Carter is black.

In August 2015, Carter was arrested for being a felon in possession of a gun and indecent behavior with a juvenile. On the outside, Carter struggled to find a steady job. He occasionally picked up shifts as a mechanic, but it barely paid the bills—and certainly didn’t cover the cost of a defense lawyer. So when Carter got locked up, he waited until he could meet with a court-appointed lawyer who could help mount his defense. Finally, after three months, Carter met his counsel during his arraignment.

Carter said he has barely seen him since.

“He hasn’t come to visit me once,” Carter claims, adding the attorney hasn’t conducted interviews or done anything to investigate the circumstances surrounding his charge. In a December court date, the district attorney and the defender jointly requested and received a continuance, yet again pushing back a decision on Carter’s fate. The lawyer didn’t speak to Carter again. (The East Baton Rouge public defender office didn’t reply to a request for comment.)

“The public defender,” he sighs, “they don’t do anything for you.”

Carter’s story is all too familiar in Louisiana, where 85 percent of people accused of a crime are poor. Black people are jailed at a rate four times that of white people (PDF). Paying for their defense is a system funded primarily through fines and fees instead of tax dollars.

Louisiana is the only state that funds its public defenders this way, and with 250,000 annual cases, the system has collapsed. The median amount spent on public defense per case was just $238 in 2016 (PDF). The crunch is so severe that three-quarters of public defender districts quit accepting certain new clients last year.

So a small coalition of lawyers started plotting a response. On Feb. 6, after nearly a year of research and planning, the legal team, an unlikely union comprised of civil rights attorneys and an elite New York corporate firm, filed a class action lawsuit on behalf of Carter and 12 other inmates against a slew of state actors. Just last week, the team submitted a motion to certify the class. If the motion is granted, the lawsuit will be the largest of its kind ever.

The suit aims to blow the whistle on an open secret: that Louisiana has systematically denied poor people their constitutional right to criminal defense. The plaintiffs are requesting the creation of a court-appointed monitor to oversee statewide public defense until reforms are enacted to fix it. Put simply, the class action may be a tentative first step toward more equal criminal justice for poor people, like Michael, in the state that has become the epicenter for America’s mass incarceration crisis.

***

In 1963, the Supreme Court established the right to counsel in Gideon v. Wainwright (or as cops are required to say, “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”) Louisiana responded by doing the bare minimum to comply with the ruling. Local Indigent Defense Boards were created and financed solely through conviction fees. It wasn’t unusual for those working felony trials to receive just the equivalent of $500 today); lawyers with misdemeanor cases weren’t paid at all.

It got worse as crime boomed and tough on crime policies followed. Caseloads for public defenders jumped from 69,000 in 1986 to 114,000 by 1992. During that same period, funding fell from $157 to $99 per case. A 1992 report commissioned by the Louisiana Supreme Court was “on the verge of collapse.”

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Now it’s finally happened. In each of the past six years, Louisiana’s average caseload per attorney has been more than twice—and as much as five times—Louisiana public defender standards (PDF). By 2014, public defenders collectively had a budget of just $50 million to provide representation in nearly 250,000 cases, or about $200 per case. Two years later, in the spring of 2016, districts were so overburdened that 33 out of 42 public defender offices across the state had began refusing to accept certain new clients.

It was around that time that lawyers from the Southern Poverty Law Center (SPLC), Lawyers’ Committee for Civil Rights Under Law, Davis, Polk & Wardwell LLP, and Jones Walker LLP jointly began building their case.

“Our argument is that in many of these parishes, you have a lawyer in name only,” says Lisa Graybill, the SPLC’s deputy legal director. “You’re not getting the kind of representation that Gideon envisioned.”

Graybill oversees the organization’s criminal justice reform work and is one of the architects of the class action suit. Other states, such as Utah and Idaho, have been subject to similar litigation, but not on this scale. Yet given the depth of Louisiana’s crisis, this suit is on another scale. As of 2014, around 6,500 people were imprisoned in Utah. Louisiana’s incarcerated population was nearly six times that.

Public defenders bear the brunt of the state’s over-policing. Meanwhile, excessive client lists are coupled with a funding structure that remains uniquely problematic.

“Two-thirds of the funding of most of the localities is based on local user fines and fees,” Graybill says. “That the budget of many of the local defenders offices literally has no correlation to the need for services.”

While preparing for the lawsuit, SPLC lawyers spent months observing courtrooms and meeting defendants across the state. What they say they found is shocking. Many defendants were encouraged to plead guilty without any investigation into the strength of the state’s case. Lawyers regularly didn’t know or recognize their clients. In one case, a public defender only spoke to an inmate through a microphone, asking him, from across a courtroom, if he wanted to plead guilty. Occasionally defendants would walk up to the podium and plead guilty without any noticeable representation at all.

Graybill said their complaint isn't against the public defenders themselves but the system that employs them. That’s why the defendants include the governor, current members of the Louisiana Public Defender Board, and State Public Defender Jay Dixon.

“We really want to focus on the statewide nature of the problem and the systemic deficiencies in funding and oversight,” Graybill said.

In fact, some public defenders have acknowledged the need for such a suit.

“It’s been tough for us. We’re working in a city with extreme caseloads, in a state that’s the incarceration capital of the world,” said Derwyn Bunton, New Orleans’ chief public defender. “I think this litigation was an inevitable consequence of decades of failing to meeting the threshold set out by the Sixth amendment of the constitution.”

Dixon himself agrees that the vast majority of districts rely “on inadequate, unstable, and unreliable funding streams” (PDF). (As a litigant in the case, Dixon declined to comment for the article.) The state, however, is dealing with a budget shortfall of hundreds of millions of dollars. And more money for defendants is a tough sell.

But Graybill argues that a deficit isn’t a reasonable excuse to deny people their civil rights. And she and her team are hoping that an injunction from the courts will force the state to act. While the exact mandate would be up to the courts, a monitor could oversee performance standards, monitor caseloads, and, ideally, put pressure on the state to increase funding.

“It’s a very collusive system, where the different players show up and play their part in the game that just churns people through and puts them in prison,” she says. “It’s not representation in the way the Supreme Court envisioned it or the way the constitutions requires it.”

***

On the morning of March 13, in his most recent court appearance, Michael Carter awkwardly shuffled into room 9B of the 19th district courthouse in an orange jumpsuit. It’s hard to walk when you’re legs are in shackles.

Over the next three hours the judge called up dozens of defendants—from arraignments on pot possession to pre-trial motions for domestic abuse cases. Finally, only Carter was left for a conference between the prosecution and defense to try to settle his case before trial. As the public defender leaned next to Carter to privately explain what the district attorney is offering, Carter just shook his head. After a minute or so, the counselor left and the court went into recess.

That afternoon, there was a new development: The judge had just been told that Carter’s family was attempting to hire new counsel, and she asked if he was aware of the plan. After a year and a half pushing for a trial, Carter and his family decided to start from scratch, searching for a private defense lawyer that doesn’t know his case—and that they almost certainly wouldn’t be able to afford.

Carter stood before the bench and mumbled affirmatively to the news. The judge ordered another 60-day continuance. There were two public defenders in the courtroom, but Carter was standing alone.