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.