Public Interest

Life As A Public Defender In Louisiana

Just how bad is it these days for Louisiana public defenders -- and their clients.

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A Louisiana Public Defender penned a recent op-ed in the Washington Post that breathes some life into the problems I’ve chronicled here: how PD underfunding makes life difficult for PDs and leads to representation that’s inadequate to the point of being constitutionally deficient. In this post, I’m going to walk you through some of the highlights of the piece, which I nevertheless recommend you read in full.

But first, a little reminder about the situation Louisiana PDs are facing. Back in March, I wrote that Louisiana’s PD system was looking at a $5.4 million shortfall. The results: layoffs, salary and benefit cuts, and increased caseloads for surviving PDs. Some of these results had already begun to occur when I wrote my last post on the issue; others have come to fruition since.

This situation apparently extends to the Orleans Public Defenders, whence hails PD Tina Peng. The Orleans Public Defenders serve Orleans Parish, which shares all its boundaries with the City of New Orleans. You can probably imagine plenty of reasons that this particular PD office needs all the funding it can get.

No dice, says Peng in her piece in the Post (titled, appropriately, “I’m a public defender. It’s impossible for me to do a good job representing my clients.”). Of Louisiana’s $5.4 million PD funding shortfall, spread across the state’s 64 parishes, the Orleans Public Defenders are on the hook for $1 million. Peng describes the shortfall as “devastating.”

Peng writes that the office will manage to avoid layoffs by imposing a month-long unpaid furlough on each member of the staff, freezing hiring, and — despite the fact that these moves amount to a reduction in overall staffing — increasing individual caseloads.

To put all that into perspective, Peng offers some pretty shocking information: as soon as she passed the bar in 2013, she immediately took on clients “facing mandatory life sentences on felony charges,” and by 2014 was handling twice the ABA-recommended caseload of 150 felony cases a year. And now, as a result of a budget shortfall, she’ll have an even higher caseload.

So what’s it like in practice to handle 300 felony cases per year, anyway? Peng provides a snapshot:

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Defendants who cannot afford to make bond can sit in jail for 60 days while the district attorney decides whether to arraign them. An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.

And these problems don’t just fall on the lawyers:

We have only nine investigators to handle more than 18,000 felony and misdemeanor cases each year. One investigator describes being so overwhelmed that he is often unable to canvass for relevant surveillance footage until it has already been deleted. Another investigator said that recently, in a span of a week and a half, she was assigned three cases carrying sentences of mandatory life without parole. A year ago, she would have received one such assignment a month. Those cases all had preliminary examinations — the only pre-indictment hearing at which the client’s attorney can cross-examine police officers — in the same week. Working around the clock, the investigator completed full investigations for two of those cases. For the third, she was able only to knock on one witness’s door twice.

Still, despite facing the loss of a month’s pay while being assigned more work, Peng says her office’s problems don’t fall hardest on her and her coworkers: “My frustration with our office’s persistent underfunding is not that it forces me to work long hours, represent numerous clients or make far less money than I would at a private law firm. It is that when we are constantly required to do more with less, our clients suffer.”

Indeed, Peng ties PD underfunding to police misconduct and mass incarceration — and constitutional deficiencies. I’ve covered the constitutional-deficiency issue before here. There’s plenty of precedent for finding Sixth Amendment violations as a result of PD underfunding. And it’s particularly instructive to remember that a Washington state lawsuit asserting this very theory resulted in an attorney-fee award of $2 million.

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All of which is to say that Louisiana may want to reassess its PD funding system and find some more money for its PD offices, lest it be hit with a court order requiring big changes and a multi-million-dollar attorney-fee award to boot.

And as for you? I’ll say it again: you should head over to the Post and read what Peng has to say — and, maybe, consider doing what you can to support better funding for public defenders.

I’m a public defender. It’s impossible for me to do a good job representing my clients. [Washington Post]

Earlier: An Airing Of Grievances On Behalf Of Public Defenders
Underfunding Public Defenders Can Lead To Sixth Amendment Violations

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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