Opposition to changing governance of Louisiana’s indigent defense from an appointed board to a gubernatorial designee generated more heat than light and shouldn’t derail an improvement to a system as yet never quite fixed.
SB 8 by Republican state Sen. Mike Reese may end up the most controversial bill of the Legislature’s Second Extraordinary Session of 2024. Its initial hearing dragged on for hours with support voiced for it by State Public Defender Remy Starns and a few others, but most of the time was taken by opponents, many connected to public defense.
The bill would remove the Louisiana Public Defender Board from policy-making, leaving only an advisory role, transferring that to the public defender. Rather than he be an appointee of the Board, the governor with Senate confirmation would make the appointment, for two years. This would put contracting and chief district defender hiring solely in the hands of the public defender, among other things, rather than by the Board which currently has five gubernatorial appointees (from each appellate district), four from the chief justice of the Louisiana Supreme Court, and one each from the leaders of each state legislative chamber, serving overlapping four-year terms.
(Not that the Board has done itself favors with new Republican Gov. Jeff Landry, who backs the bill. Chock full of appointees of his predecessor and a chief justice whose views haven’t shown much affinity with Landry’s, in the Board’s latest annual report that has a wish list of policy preferences it would like to see enacted these don’t exactly mesh with Landry’s.)
Opponents raised two common objections. One holds no water and people versed in the study of government and law should know better: that somehow gubernatorial appointment violates separation of powers. It’s an ironic complaint, because if anything the charge would stick better if applied to the current board having policy-making authority, as the state judiciary in whose courts defenders will argue appoints four board members. As well, just as is the governor, the Board is part of the executive branch
But the governor has no power over the state’s judiciary and no involvement with it; the elected executive branch official with that is the attorney general. Plus, the governor’s appointive power is checked by the state Senate through the confirmation process. And, among the states that have any statewide authority over public defense, a gubernatorial appointee is the second-most common method of picking a statewide public defense policy-maker, in ten states while the commission form at present in Louisiana is most common in thirteen. Simply, there’s nothing remotely unconstitutional about this arrangement.
Ringing less hollow of a complaint is that the shift will increase politicization of the office, despite a study of differing governing structures which doesn’t see a real performance difference between gubernatorial appointee governance or board governance in terms of quality that would be hampered by politicization. How exactly greater politicization would occur wasn’t covered by defenders of the current system, even as the recent performance of the Board if not displaying politicization has exhibited a degree of dysfunction that proponents of the bill like Starns argue would be less likely to occur under the change.
For example, one recent board member (who died in office), a private defense attorney holding no contracts with the 26th District, created controversy when he crashed Republican 26th District Attorney Schuyler Marvin’s official vehicle into a Bossier Parish bayou. Arriving at the scene, Bossier deputies found numerous floating beer cans and later tracked down the driver, who had no authorization to operate the taxpayer-owned vehicle but whom Marvin later said had been “borrowed.” The late driver in 2021 faced only a charge in Marvin’s district of failure to report an accident, to which helped guilty and paid a $100 fine.
The Board also last year removed two chief defenders. One, in the 25th, a Legislative Auditor report determined while in office had issued unauthorized student loan assistance payments (including to herself), information she shielded from the Board. Another, in the 19th, it removed apparently at the behest of a state legislator for personnel problems who was accused of being hired for political reasons involving both the Board and Starns.
An argument made by Starns and legislative bill supporters is the Board, including in its previous incarnation prior to 2007, has a history like this because of its nature as an avenue for political patronage and is institutionally less capable of holding local defenders accountable. They say making one person responsible will reduce these problems.
They also noted that because of this history the Legislature is too reluctant to increase indigent defense funding. Louisiana’s schizophrenic funding mechanism that relies far too heavily on local revenue generation out of the hands of public defense which then hopes the Board can entice the Legislature to provide enough money to make up for it that it then hopefully distributes in an equitable fashion has produced chronic shortages in certain districts. Bill proponents claim the Legislature will have more confidence with a system like the one proposed to jack up the money allocated to indigent defense, with a better structure to oversee district financing and contracting less prone to parochial and special interest pressures.
Systems like the one proposed work in other states, which historically have worked better than Louisiana’s has, regardless of a recent spate of action by the Board trying to address dysfunction and questionable decision-making that seems belated and in a mode of trying to salvage its position. Best of all, the bill’s alterations create greater incentive for a governor and Legislature to get it right with picking a quality appointee than under the current diffuse lines of accountability. It’s a change that only can improve matters, meriting the bill’s passage.
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