LA public defense allocations deserve scrutiny

Lots of different sources receive blame for the chronic money shortages faced by Louisiana’s public defenders. And they all deserve it, including the public defenders themselves.

Last year, a new law mandated distribution of at least 65 percent of regular revenues flowing to state public defense go to individual districts. While this increased the total going to districts, controversy has broken out over these allocations.

Public defense funding in Louisiana always has had problems, because so much of the amount for each district derives from local court adjudication. This relies heavily on law enforcement activity; for example, greater diligence in writing traffic tickets means more money for public defense. Thus, defenders suffer the vagaries of enforcement decisions as well as growing attempts by prosecutors to divert that flow of money to defenders through court diversion programs.

More generous statewide funding supposedly would smooth out this variance, and a formula that considers caseloads, case severity, and overhead attempts to do this. However, it also factors in local support, which can vary tremendously year-over-year and therefore cause cash crunches and dipping into reserves when present-year law enforcement activity and/or diversion program use does not closely match the prior year’s.

Moreover, disagreement has broken out among defenders over the fairness of allocations. For example, the 15^th District, with an equivalent population base to the 41^st, receives less than half the state funding as does the 41^st. This has led to accusations that the squeakiest wheels get the grease, which then the formula in reverse engineered fashion tries to justify.

A comparison of those numbers shows validity to that argument. In the 15^th, at the end of 2016 there were almost 16,000 adult cases pending, while the 41^st had over 17,500. But the 15^th had about 1,000 more felony cases and 16 capital cases compared to three in the 41^st. Moreover, the 15^th received only about 80 percent of the court fees generated in the 41^st.

Perhaps most disturbingly, in the 15^th far greater efforts occurred to collect the $40 fee assessed to all indigent users, although often waived. That produced over $100,000 in revenues, compared to the roughly $20,000 garnered in the 41^st, which has negotiated a deal with the Criminal Court (Orleans Parish is the only district with separate criminal and civil courts) not to collect the fee.

In other words, the 15^th gets punished by receiving much less money for doing its job of asking defendants to pay their fair share, despite weaker local support and a case mix and load equivalent to that of the 41^st. If replicated across other districts, some formulaic change seems in order.

The formula should more closely track numbers of cases and their mix, although capital cases should receive special attention. Until last year’s law, state money could flow freely to outside entities hired for those kinds of cases, which it tightened up. A large portion had gone to just a handful of cases, and with sitzkrieg strategies increasingly gaining popularity to moot capital sentences, costs kept going up. Placing special limits on capital case reimbursements will help defenders focus on actual defense rather than engaging in dilatory tactics.

Further, the formula should reward, not penalize, districts more diligent in collecting the application fee, to prevent a lackadaisical approach or one too solicitous of the defendants at taxpayer expense. Of course, the best approach would create more stable local funding sources, but that would require legislative intervention that the formula can’t address.

Certainly that funding mechanism, as both the state’s public defender and district defenders constantly point out, needs reform. But they in part bear responsibility for their own funding difficulties, and by tweaking the formula and changing their own administrative practices they can help themselves without making unnecessary demands on taxpayers.