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Louisiana’s Public Defender Fees are Poor Fiscal and Legal Policies

A client- and conviction-dependant funding scheme in Lousiana places well-intentioned public defenders in conflicting positions relative to their clients.

  • Roopal Patel
April 12, 2012

In Louisi­ana, people who are repres­en­ted by a public defender and are later convicted must pay a $35 fee to augment fund­ing for public defend­ers even though they have already had a judi­cial determ­in­a­tion made that they cannot afford an attor­ney. The fee creates a system that under­mines the Consti­tu­tional right to conflict-free coun­sel by forcing attor­neys to rely on their clients’ convic­tions for much needed fund­ing. The exist­ing fee already acts as an illo­gical tax on indi­gent defend­ants. And now there are two bills before the Louisi­ana House that would raise the fees on people who are likely unable to pay.

Like many states, Louisi­ana has system­at­ic­ally under­fun­ded its defender offices – recently result­ing in a layoff of 10 percent of the staff in the Orleans Parish public defender office.  Even though their indi­gent clients face poten­tial incar­cer­a­tion for fail­ure to pay, cash-strapped defend­ers have been forced to advoc­ate for more vigor­ous enforce­ment.  In 2011, the Louisi­ana Public Defender Board sued 23 New Orleans judges who failed to collect the $35 fee. Richie Tompson, the chief public defender in Jeffer­son Parish argues that the fee increase is a neces­sity; other­wise defend­ers would be forced to restrict services.

Increas­ing the fee to $55 as proposed by State Repres­ent­at­ive Jeff Arnold or to $100 as proposed by State Repres­ent­at­ive Marcus Hunter – a former public defender – would only lead to an increase in the number of people unable to pay, along with a likely increase in costs related to collec­tion. 

Although inten­ded to help fill budget gaps, Louisi­ana has failed to track the costs of collect­ing crim­inal justice fees and fines. There has been no formal study done of how many people are able to pay the current fee of $35, but the number could be as low as 20 percent of convicted people. The exact numbers of the poor affected by increas­ing the fee are diffi­cult to determ­ine, but the numbers are signi­fic­ant. Public defend­ers in Orleans Parish alone repres­ent about 80 percent of all crim­inal defend­ants, taking on over 45,000 cases in 2010.  Iron­ic­ally, a fee scheme that does­n’t adequately assess the like­li­hood of actu­ally collect­ing the funds may likely lead to greater defi­cits and further burdens on defend­ers

The Bren­nan Center urges the Louisi­ana state legis­lature to consider the example of Massachu­setts. That legis­lature formed a commis­sion that conduc­ted a cost-bene­fit analysis weigh­ing the possible revenue to be gener­ated from a largely indi­gent popu­la­tion against the costs of imple­ment­ing a proposed jail fee and ulti­mately decided not to impose the fee.  Without such analysis, Louisi­ana runs the risk of impos­ing fees that cost more to track and enforce than any revenue they gener­ate.

A client- and convic­tion-depend­ant fund­ing scheme places well-inten­tioned public defend­ers in conflict­ing posi­tions relat­ive to their clients. Creat­ing a struc­ture that results in a need to lobby against clients’ interests is the wrong response to a budget­ary prob­lem.