Funding Justice through Criminal Convictions is the Wrong Model
Increasing fees and forcing defenders to lobby against the interests of the very people they represent is the wrong way to fund public defenders’ offices.
View a condensed version of this blog post in The Times-Picayune as a letter to the editor.
The Times-Picayune’s recent reporting on over-incarceration highlighted a myriad of problems with the criminal justice system, but missed one piece of the puzzle: under-funded public defenders. This is a problem that should be at the forefront of public debate as the governor considers HB 365, which would increase public defender fees paid by convicted clients. Low pay, limited resources, and punishing caseloads often compromise defenders’ ability to represent their clients well and protect people from unjust sentences. In Louisiana, these challenges are exacerbated by a funding structure that provides inadequate financing and creates serious conflicts of interests.
According to the Louisiana Constitution, the state is obligated to create “uniform systems for securing and compensating qualified counsel for indigents.” Instead, Louisiana relies on traffic fines and defender fees to fund attorneys for the tens of thousands of people who are in need of indigent defense in any given year. Traffic fines, which can vary widely from year to year, are an illogical revenue source for public defenders trying to fulfill a constitutional right for poor people. Furthermore, attempting to exact payments from indigent people with criminal convictions will likely generate little revenue and will create unnecessary hardships for the people going through the system. As defender offices struggle to provide services, the clients they serve are being forced to bear the brunt of this broken system.
Louisiana Governor Bobby Jindal is currently considering a $10 hike in the statewide defender fee to $45, approved by the House and Senate. A ten dollar fee increase may not seem like a significant amount, but to a person going through the criminal justice system, this cost, in conjunction with a number of other fee assessments, can become an insurmountable debt load.
While the goal of the fee is to generate revenue for defender offices, Louisiana has failed to track the costs of collecting criminal justice fees and fines. There has been no formal study of the number of people who are able to pay even the current fee of $35. One informal accounting of Jefferson Parish suggests that number could be as low as 20 percent.
The $10 increase can only lead to an increase in the number of people unable to pay, and an increase in the costs of collection for the state. States such as Ohio and Massachusetts have refused to implement fees for jail stays after realizing that trying to collect from a largely indigent population would not yield significant revenue.
Ultimately, relying on criminal convictions in order to fund criminal justice is untenable. Defenders face an obvious conflict of interest under this system and are forced to lobby against their clients’ interests. Despite the negative ramifications for their clients, defenders have supported increasing the fee in order to fund their services. In 2011, the Louisiana Public Defender Board sued 23 New Orleans judges who failed to collect the original $35 fee.
Systematic underfunding has already resulted in massive layoffs and salary cuts in the Orleans Parish public defender office. And while the Orleans defender’s office has undergone layoffs, New Orleans Traffic Court—one of the main sources of funding for these offices—has been withholding hundreds of thousands of dollars a year designated for public defenders in the parish.
Louisiana’s problems highlight the struggles for survival that defender offices face across the country. At the American Bar Association’s National Summit on Indigent Defense, held in New Orleans this past February, Attorney General Eric Holder noted that our country’s indigent defense system is in crisis and defenders are being asked to meet growing demands with increasingly limited resources.
Holder is right. Defender offices across the country, and in Louisiana in particular, need more resources. But increasing fees and forcing defenders to lobby against the interests of the very people they represent is the wrong way.