Years ago the state
supposedly solved for the chronic underfunding of indigent defense.
Constitutionally, if the law defines a person as indigent, the state must
provide legal representation to those accused of crimes. In the past, the
system depended upon the wildly varying funding source of surcharges on
convictions with a backstop of state funding doled out by need. The reform
included increasing the latter component, recognizing that enforcement choices
of law enforcement agencies that by definition operate independently of the
system made for too much instability.
But with budgetary difficulties in
the past couple of years that have reduced the state funding and with changes
in enforcement patterns that have reduced the number of cases that could result
in the fee payment, last year’s atmosphere that saw only a handful of the 42
(one for each judicial district) public defense agencies in difficulty and just
a couple approaching a crisis point has deteriorated further. Now, before the end
of the year a few agencies may have to stop taking new cases, even as currently
they work with more of these per lawyer than national guidelines recommend, and
many others threaten to join them in 2017.
Some of the fault lies with the
agencies themselves in that they do not aggressively enough pursue guilty
defendants paying the nominal fee of $45 for representation or the $40 initial
application fee. The representation fee increased from $35 a few years ago, but
the extra will expire later this year unless something like HB 136 by
state Rep. Sherman
Mack becomes law to extend the addition.
However, to bridge the gap other
and greater state commitments must occur. On the expense side, recent
publicity about sentencing reform that appears to gather bipartisan support
could increase chances that a number of crimes at present defined as felonies
could become misdemeanors, meaning less demand on public defenders’ time and
resources. However, the only legislative efforts to this point as the session
begins focus on removal of older juveniles from the adult system; no
legislation appears to make comprehensive changes across a broad range of
violations.
On the revenue side, the budget
presented by Gov. John
Bel Edwards prior to the just-concluded special session cuts public
defender funding by 62 percent, which would spawn months sooner the projected
defense catastrophe. By instigating a backlog of cases because of swamping of
defenders that would delay matters considerably, courts may begin to order
freeing of the accused as their lengths of time in jail with no trial date in
sight could constitute constitutional violations. The alternative would have
volunteer lawyers from the community pitch in (part of their duties as members
of the bar include offering legal aid), but likely many would take cases outside
of their areas of expertise; while jurisprudence does not guarantee competence
in representation, constitutional standards do argue
for a minimal level of effectiveness.
Given that the special session
produced solutions to the fiscal year 2017 deficit that more than halved it,
the Legislature may rethink Edwards’ slashing of state indigent defense aid.
Still, anything not around last year’s appropriated amount would provoke a
crisis, so they must seek revenue enhancements.
Some could depend upon guilty
verdicts to other crimes, which only makes sense as those who commit them as
part of their debt to society ought to pay for others’ defense when indigent.
Amending HB 136 not merely to continue the extra fee but to set
it permanently at a minimum of $50 or 10 percent of any court-levied fine
would shore up the system.
Yet smaller jurisdictions with few
cases that ever approach large fines (and keeping in mind with fines levied
some individuals never will have the means to pay off in full, much less right
after conviction) will not benefit much from this new arrangement, so the state
must adjust its funding formula to fund more heavily smaller jurisdictions.
Even so, given the emergency situation facing many agencies, should such a law
take effect immediately that would not provide enough relief quickly enough.
So, for FY 2017 the state simply
has to come up with the money. With around $800 million remaining to pare from
that budget, indigent defense may provide a tempting target to cut. But that
would cause more problems than the worth of whatever easing of budgetary strains
that action would produce. Wiser would be to find adequate dollars for it and
to cut elsewhere.
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