ANOTHER AREA TO CONSIDER: access to a decent defense. Problems in public defender systems are obvious to those who spend time in courtrooms. Jeff Ware, now 58, learned in 2007 the difference a good attorney can make. Louisiana authorities charged him with child endangerment when he spanked a nephew under his care. He spent $4,000 to hire an attorney and, while waiting for his hearing, Ware saw three benches full of defendants waiting to see a public defender.
A judge eventually dismissed the case against Ware, but not before prosecutors had offered a plea deal of three years in jail. Having a good attorney was critical to avoiding jail time: “I was thankful I could pay the $4,000.”
Many of those charged with crimes can’t afford that. They look for a public defender, but in Louisiana a defendant must pay a $40 application fee and then compete for representation from a small pool of public defenders. A 2017 study found Louisiana needs 1,400 more public defenders, but the state doesn’t have the funds to pay them. To meet Louisiana’s own standards, the Louisiana Public Defender Board needs a minimum of $125 million, compared with the $34 million allocated for 2017.
In New Orleans, overworked public defenders spend an average of seven minutes with their clients before trial, according to the ACLU. New Orleans’ 50 public defenders manage over 22,000 cases per year. The situation has grown so dire that Derwyn Bunton, the city’s chief public defender, says the office is now refusing to represent felony cases: “A poorly resourced lawyer can do irreparable harm.”
One reason Louisiana is so understaffed: It funds its public defender system through a “user fee.” When a court finds a defendant guilty, even if it’s the result of a plea bargain, his court fee includes a $45 charge sent to the local public defender’s office. But the funding is not enough, and opponents of the system say it brings in too little revenue and rewards public defenders for losing cases.
District attorneys receive funding directly from the state, and some say public defenders should be on a level playing field with them, but that’s not a popular position. Meanwhile, New Orleans’ public defenders maintain a donation page to help keep the office open.
One proposal: In Comal County, Texas, officials are testing a program to allow defendants to choose their own public defenders. Proponents say allowing lower-income defendants to be more involved with their own process could lead to a better defense. But that still doesn’t get at the issue of the supply of public defenders. In some locales, judges resort to directing reluctant local attorneys to represent poor defendants.
One hope: Organizations like Gideon’s Promise in Atlanta are seeking to attract more law students to serving the poor. The organization has partnerships with top law schools, such as Harvard and the University of Chicago, with the goal of attracting graduates who have a passion to serve the poor. The schools financially support their graduates during their first year as a public defender. Last summer, Gideon’s Promise trained and launched the careers of 17 new public defenders through this program.