Gideon Alert: Gulf oil spill mires Louisiana's right to counsel reforms

BY David Carroll on Tuesday, June 1, 2010 at 9:46 AM

The Louisiana legislature passed the Louisiana Public Defender Act of 2007 (“Act 307”) on an overwhelmingly bipartisan vote with the expressed intent of ensuring that “all indigent criminal defendants who are eligible to have appointed counsel at public expense receive effective assistance of counsel at each critical stage of the proceeding,” and “that the right to counsel is delivered by qualified and competent counsel in a manner that is fair and consistent throughout the state.”  The reforms included abolishing judicially-controlled local indigent defense boards in favor of an independent statewide board (Louisiana Public Defender Board; “LPDB”) with regulatory authority to draft, promulgate, and enforce binding standards on attorney performance and workload, among others.  But implementation of the changes has come slowly. 

Though the legislature quadrupled state spending on indigent defense (from $7.5 million to $28 million in 2007), the depth of the pre-existing problems was so great that it has been difficult for Board policies to take root in all 41 judicial districts all at once.  The cause of most of the lingering deficiencies can be traced to the unique funding mechanism devised by state policymakers to finance the right to counsel.  Louisiana is the last remaining state to leave a significant percentage of funding for indigent defense up to the vagaries of whatever money happens to be collected each month through court costs – primarily traffic tickets – rather than putting defense providers through the same rigors of local or state budgetary processes as other important government agencies.  The funding scheme has been labeled “unstable and unpredictable” by the Louisiana Supreme Court because there is no direct correlation between the ability of a jurisdiction to garner money through traffic tickets and the resources required to provide adequate defense services.

Calcasieu Parish (Lake Charles) was one of the areas battered by Hurricane Rita.  In the aftermath of the storm, conditions at the public defender office - already facing a class action lawsuit spearheaded by the National Association of Criminal Defense Lawyers (NACDL) - got worse.  Law enforcement officials appropriately focused resources on rescue/recovery efforts and securing public safety, in light of the unprecedented displacement of population to other parts of the state, rather than writing traffic tickets.  Yet, these necessary law enforcement procedures for all intents and purposes left the public defender office in Lake Charles with no income.  To date, the public defender office has yet to recover.

The Advocate reports that caseloads for public defenders are far above the standards set by the new statewide board.  Though the District Attorney complains that the public defenders are only carrying 350-450 felonies each (or 200-300% of nationally recognized workload standards), LPDB reports that hand counts of public defender files show that lawyers are actually carrying caseloads that range from “661 to 2,794” cases per attorney.

Supporters of indigent defense reform in Louisiana were hopeful this would be the year that the problems in Calcasieu Parish would be addressed, with an anticipated increase of $6.6 million in state funding – much of which was to be targeted to the Lake Charles system.  Thursday night, LPDB found out that $5 million of that increase was stripped out of the LPDB proposed budget because the state needs to re-direct money to clean up their shores due to the British Petroleum oil spill.

If there is a silver lining to this story, it is that the Calcasieu Parish public defender – armed with independence created by Act 307 – will stop taking cases starting August 1st until such time as they come into compliance with LPDB standards.  And, the LPDB is taking their case directly to the statehouse, noting in a separate Advocate article that LPDB received a mere $50,000 of the $21 million dollars in 2009 federal stimulus monies paid to the state through its Commission on Law Enforcement (or less than a quarter of a single percentage point).