LA indigent defense must help itself first

No year would be complete without attention drawn to Louisiana’s shaky model of indigent defense funding. Which leads to a reminder about how public defenders have to help themselves before they can expect taxpayers to render further assistance.

Last year at this time, the state’s Public Defender Jay Dixon gave notice to the rapid increase in diversion programs not just for minor, but many, traffic cases. Because court fees assessed in districts account for much of the local government contribution, which itself comprises about five-eighths of all public defense revenues, any loss of revenues this way can significantly impact defenders.

This year, Dixon repeated the message that local ticket-writing that leads to court actions has continued its decline, to a legislative task force looking at statutory dedications like the court fee. While some of the 42 districts (overseen by 39 offices, as in three instances two districts run combined) still have stable local revenues sources, more and more have started to dip into reserves that, Dixon warned, will dry up for some in the next couple of years.

Districts can’t stop operations, from a money shortage or any other reason. That would abrogate the Constitutional right to self-defense for those without adequate resources, and already a law suit has popped up alleging the funding system itself, with the inequities to it if not its inability inherently to provide sufficient defense, is unconstitutional.

The state responded a couple of years ago by mandating the state board in charge of the function allocate at least 65 percent of its proceeds to local districts, presumably in a way that disproportionately sends dollars to the districts most financially precarious. Despite that mandate, Dixon claimed to legislators that only an infusion of more state funds could keep the system afloat.

But Dixon neglects some important information that weakens his argument considerably. The formula that distributes state money doesn’t do that in the most effective way. For example, the 26^th District (Bossier and Webster Parishes) had around 13,000 active cases in 2017, had a bit over half of its revenues come from the state (about $850,000), yet had to dip into reserves slightly. Meanwhile, the 1^st District (neighboring Caddo Parish) handled about 3,000 more cases but spent around twice as much and received nearly twice as much from the state, while bankrolling around $50,000 (the proportion of adult felony cases, disproportionately expensive, was only 3 percent higher in Caddo than in Bossier/Webster).

As another neighborly comparison, the 22^nd District (St. Tammany Parish) logged nearly 14,000 cases, collected nearly $1.5 million from the state (just under half its revenues), and stayed about $1,000 in the black. Yet in the 41^st District (Orleans Parish), for its over 26,000 cases it raked in almost twice that amount from the state despite this representing just below 40 percent of total revenues – and still lost over $1.2 million (about 55 percent of St. Tammany adult criminal cases were felony, while just a third in Orleans were).

A formula that seems to supplement both profligacy and still gives generously to places with relatively higher local support doesn’t appear to iron out real differences or help the truly strapped districts. Compounding this, districts that the formula seems to favor appear to make less effort to collect fees from the actual users of the system.

Each public defense client faces a $40 application fee, but defenders had broad discretion on whether to charge it. Not often do they choose to do. In the state’s ten largest districts with over half of all adult cases started in 2017, they collected only 16.2 percent of this levy. However, this figure masks a wide disparity in collection proportions: the 26^th registered 28.6 percent and the 22^nd 35.9 percent, while the 1^st logged just 5.5 percent and the 41^st a paltry 2.3 percent.

In other words, those districts benefitting the most from the formula use their own resources the least to raise money. Had Orleans, for example, gathered at the average of the largest districts, it would have cut over $100,000 off over its deficit.

Yet it made a deal with the Orleans Criminal Court not to ask for the fee, and it also has been complicit in efforts to effectively eliminate bail, which cuts off another source of funding – $2 for each bond. It won’t help itself raise funds, but expects taxpayers statewide to bail it out.

Perhaps the state does need to supplement local defense more. But it shouldn’t do so until results from a new formula, changed to reward districts that work more efficiently and that do more to try to help their own causes, still show shortages. Holding your hand out without making a good faith effort to do your best isn’t good enough.