Public defenders in Louisiana get extra funding when their clients are convicted, creating perverse incentives that make it harder to establish trust between poor defendants and their attorneys, advocates said Thursday.
“Public defenders are paid to lose,” said Derwyn Bunton with the Orleans Parish public defenders office.
Lindsay Blouin, a public defender in East Baton Rouge Parish and a board member of the Public Defender Association of Louisiana, said an accused offender who gets a court-appointed attorney can be charged $45 for “special costs,” but the public defender’s office only gets the money if the client is convicted.
“This is where the breach in the public trust between the public defender system and the citizens that we represent becomes so critical,” she said.
Louisiana lawmakers as part of the 2017 criminal justice overhaul passed Act 260, which was meant to ensure fines and fees do not become a barrier to successful re-entry into society. But enforcement has been pushed back amid concerns about the impact on court funding, which heavily depends on self-generated revenue.
The Louisiana Commission on Justice System Funding, which met Thursday, is looking for ways to pay for the court system while allowing Act 260 to be implemented. The U.S. Fifth Circuit Court of Appeals added urgency to the commission’s work recently when it ruled that criminal court judges in Orleans Parish have a conflict of interest when deciding whether defendants are too poor to pay the fines and fees that help fund the court’s expenses, possibly setting a precedent that will be relevant statewide.
Will Harrell, an attorney and prominent criminal justice activist who is on the commission, expressed shock at Blouin’s revelation, later confirmed by Bunton, who said it had been standard practice in the state since the 1970s.
“You’re kind of freaking me out right now,” he told Blouin. “The worse a criminal defendant fares in this process, the better the public defender fares in terms of the bottom line. … There is a conflict of interest.”
Julia Spear, an administrator with the Louisiana Supreme Court, said the justices are “leaning toward” favoring a new system that replaces fines and fees with general state appropriations. But state officials currently don’t know how much money is needed because the entities that collect, distribute and spend the money don’t always keep detailed, easily searchable records.
A Louisiana Supreme Court staff review of court audits from 2018 indicates district courts used $28.2 million in self-generated revenue to pay 50.9 percent of their expenses, while the numbers for city and parish courts are $17 million and 70.8 percent respectively. However, the report captures only a portion of the total cost of the justice system and should be treated as a starting point for more work, officials said.
Another open question that may be addressed by legislation is how to handle partial payments when a convicted person can’t pay their whole fine at once. Rep. Tanner Magee, the commission’s chairman, said the official who collects the money has discretion over how much to give the various entities in line to receive payment.
“I find that absolutely shocking that [legislators] have never really addressed that issue,” he said, noting that people generally aren’t shy about coming to the Capitol and fighting for money they argue they are owed.
Alexis Anderson with the East Baton Rouge Prison Reform Coalition urged commission members to keep in mind the burden fines, fees and cash bonds impose on low-income families. She says an arrest often leads to a family meeting, where members decide who has to put up their house for collateral so someone can make bail.
Anderson said defendants often sign things they don’t understand just so they can go home. She said she witnessed a defendant at the 19th Judicial District ask to plead guilty to a crime before the court professionals realized there was no probable cause to believe a crime had been committed.
“Every single day we are filling jails with people who are not guilty,” she said.