Funding reform needed to sustain indigent defense

While north Louisiana’s Public Defender Offices won’t be the only ones in Louisiana to face budget cuts for the remainder of the fiscal year – most around the state are – their struggles and consequences illustrate questions that deserve addressing about funding of this service.

As part of fiscal shortfalls at the state level, the state’s contribution to the 42 offices carrying out the function of representing indigent clients – around 90 percent of all trials in Caddo Parish involve a public defender and four-fifths of all felony accusations accrue to individuals eligible to be declared indigent – will see a $5.4 million reduction or about one-sixth of the entire contribution spread out over one-third of the fiscal year. Funding comes from the state, from local governments (by grants, contracts, and a fee on bonding), from $45 assessments, up from $35 three years ago, on the accused not found innocent, and from $40 application fees and possible reimbursement assessments, although less than half in the First District pay the fees and a much smaller proportion engage in partial reimbursement.

Several years ago the state revamped the public defender system and increased the state funded portion of it to serve as a backstop against the vagaries of court assessments. By reducing the state’s contribution, this depletes the backstop and begins to approach the same situation as some years ago. As the First District gets about half its funding from the state, this has thrown it into crisis.

As a result, its head Alan Golden has had to reduce personnel hours and/or salaries and caseloads, not only to balance the budget in face of exhausted reserves but also to create a baseline to survive into the next fiscal year. He also has had to eliminate the misdemeanor panel and the conflict panel, which comprise the majority of cases and will force farming these out to local lawyers who will donate their time but may not have expertise in those areas of law. These go into effect Apr. 1.

The Twenty-Sixth District in Bossier and Webster Parishes has been fared slightly better, avoiding layoffs of full-time personnel but not able to fill vacant positions and having to cut ties with some contract attorneys. Its head Pamela Smart will implement its restriction is services plan on Mar. 26.  Local governments have helped by waiving some costs or providing services. But in both districts a hold will be in place on taking new cases, meaning the accused, even if eventually found innocent, likely will spend more time in jail waiting on a trial.

As a whole, northeast Louisiana as far as regions go actually may be in less financial trouble than any other in the state. Nevertheless, current trends show while by next year the Fourth and Sixth Districts’ offices may be accruing funds, the Third will be operating in deficit and the Second, Fifth, and Thirty-Seventh will be insolvent.

Policy-makers generally expected that the court cost increase would bring some funding stability to the system, but that has yet to pan out, and now state budget cuts only exacerbate the situation. This underscores the problematic policy choice made in Louisiana to place such a large burden on court fees, decentralized out among 42 districts, making it the only state to rely primarily on such fees to fund the system in the aggregate. Worse, the increase is due to expire a month after the end of fiscal year 2016 and past proposed legislation to convert more felonies into misdemeanors, especially in the area of illegal drugs, that would lower defense costs are uncertain to gain any traction in the future.

While the logic of court fees is not thoughtless – those convicted of crimes should pay to provide constitutionally-required defense to others – the execution could be improved to flush more funds to indigent defense. These assessments could be altered to be 10 percent of any fine levied by a court or a minimum of $50, permanently. If crimes are of such magnitude that the higher fines imposed on the guilty reflect the additional effort the state must put in for investigation and conviction, it’s fair that part of their debt to society also include increased responsibility for assisting defense of the indigent. Concurrently the state could make a better effort to keep its contribution adequate for performance of this task.

Major strides occurred with the structural reforms of several years ago. Making needed financial reforms can avert the present funding crisis that threatens by next year to affect almost all districts in the state so these agencies can worry less about this and more about representing clients.