Despite tight budget, shore up indigent defense

While Louisiana’s legislators generally have turned their attention to balancing the budget in the just-commenced regular session, under the radar flies an area that deserves urgent attention and cannot afford any more reduction: that of paying for indigent defense, which if not soon resolved may prompt an influx of criminals roaming the streets.

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.