Even without the massive cuts announced recently by Gov. Bobby Jindal's administration, the public defender board in Orleans Parish was already expected to slip into deficit spending at some point during the 2015-2016 fiscal year, which begins July 1. The picture is just as gloomy for surrounding parishes next fiscal year, with the public defender boards in St. Bernard and Plaquemines parishes effectively broke and Jefferson's board operating with a deficit as well.
Mix in the $1.6 billion state revenue shortfall for the coming fiscal year, which has grown since the last assessment of public defender boards in 2014, and a serious situation becomes downright dangerous. With $5.4 million in cuts slated on the state level, at least half of the public defender districts across Louisiana will be forced to offer reduced services. Some face insolvency or will be pushed closer to the brink.
"There are at least 20 going under next fiscal year," said State Public Defender Jay Dixon. "There's nothing we can do about it. Some will actually run out of money before September."
George Steimel, a lobbyist for the Louisiana Association of Criminal Defense Lawyers, said lawmakers are being made aware of the situation. The cuts could result in the immediate loss of many public defenders, which would have a domino effect. Here's how:
The federal constitution guarantees the right to counsel for those accused of crimes. In order to guarantee that right at an adequate level of competency, public defender boards were created and funded. If public defender agencies go under or have to lay off public defenders, the courts could soon be overwhelmed with lawsuits by defendants who, because they did not receive constitutionally adequate defenses, will either receive longer jail sentences, be forced to remain in jail without bail before trial, or will feel forced to plead guilty just to get released, Steimel said.
Those lawsuits could clog the system, and many of them will have merit — unless the U.S. Supreme Court changes the definition of a constitutionally adequate defense.
The timing couldn't be worse. State funding accounts for about 40 percent of the overall budgets for public defender districts, with the rest coming from court costs, largely traffic violations. That has proven to be an inconsistent source — police have to write tickets for the funding to be there.
Additionally, the growing trend of RICO (Racketeer Influenced and Corrupt Organizations Act) cases in places like Baton Rouge and New Orleans are creating a need for private attorneys to be recruited to make sure defendants are represented individually. Money for those private attorneys has to come from the public defender budget. That takes a toll. According to records maintained by the Louisiana Public Defender Board, attorneys employed by district offices around the state are, on average, carrying nearly double the recommended caseloads.
"This is going to be devastating, no matter what the cut is," Steimel said. "We have a structural problem with how we fund Louisiana's public defense delivery system."
Even before the Jindal administration announced its cuts, 27 public defender districts were expected to end the current fiscal year operating in a deficit, using one-time money to bridge the gap. Another 12 were slated to become insolvent or dangerously close, according to a report from the Legislative Fiscal Office. If there were no cuts at all next fiscal year, that number would still double. "There will be about 26," Dixon predicted.
Only nine districts were expected to finish next fiscal year with enough accrued funds to post a surplus, but it's unknown how the $5.4 million budget cut might affect that predicted outcome.
Officials with public defender offices insist they have become as lean as possible, and any further reductions would be extremely painful. The Legislative Fiscal Office estimated that from 2010 to 2014, expenditures by all of the public defender districts around the state decreased by 4.6 percent overall and that the state's individual offices managed to increase revenue by 5 percent.
Yet even with these trends, which read as positive on paper, the district offices have yet to pull themselves out of a mess created by stagnant state assistance and unrealized growth in locally generated funds. Early expectations for calendar 2014 had the overall spending of district public defender boards in excess of its revenues by $3.5 million.
The end result may be a statewide trend of public defenders putting a record number of cases on waiting lists, which could present another constitutional issue. Additionally, in a move that will really raise eyebrows, staffers and contract attorneys may not receive the money owed to them for work they performed until the local districts have the funds available to cut the checks.
If a district office folds completely, judges would have to assign cases of indigent defenders to members of local bar associations — cases with no means to pay them. Moreover, the attorneys assigned to the cases may have no experience with the kinds of cases they're handling, which brings up the question of adequate representation, as afforded by the U.S. Constitution.
That actually happened in New Orleans in 2012, when Criminal District Court Judge Arthur Hunter appointed several dozen "high profile" private attorneys — some from as far away as Lafayette — to pending cases in his court. Some of the private attorneys had criminal law experience, but most did not. Hunter admitted he was trying to draw attention to the local indigent defender board's funding issues — and put pressure on state lawmakers to do something about it. Among those appointed to handle criminal cases in Hunter's court were state Sens. Edwin Murray, J.P. Morrell and Karen Carter Peterson, all of New Orleans, and Gambit political columnist Clancy DuBos. Murray and Morrell have criminal law experience, but Carter Peterson and DuBos do not practice criminal law.
Dixon said few people recognize the shaky precipice on which Louisiana stands, and how muddy the coming years could be if no solution is found.
"The defense system is in free fall," Dixon said. "The fear is that some enterprising lawyer might go to federal court and say, 'This is not a lack of funding issue, but rather an entire system going south.' Then the feds step in and have to fix it. We know how that'll turn out. They won't be gentle."
— Clancy DuBos contributed to this article.