It has become an annual ritual in Louisiana: Nearly every winter, the state’s public defenders run out of money. Last year, 33 of the state’s 42 local indigent defense offices cut staff or placed thousands of poor defendants on a wait list. The New Orleans public defender’s office began refusing clients, leaving hundreds to sit in jail without representation.
This year, there is another wait list. At least 11 Louisiana defendants facing the death penalty — including five who have already been indicted — have no defense team and may not have one until new money becomes available in July. The list is likely to grow. In Louisiana, all first-degree murder defendants face execution unless a prosecutor explicitly decides otherwise.
The latest crunch in Louisiana emerged from a law passed last year to try to patch up the system. The legislation, signed by Democratic Gov. John Bel Edwards in June 2016, required Louisiana’s state-level indigent defense agency to spend more on the overloaded local defenders — the ones who handle regular felony and misdemeanor cases — by spending less on lawyers in death penalty cases. The law successfully delivered about $5 million in additional cash to indigent defense offices around the state, including a $1.5 million boost for New Orleans, which has since ended its hiring freeze and reduced its wait list to essentially zero.
But funding for capital defenders was cut to $5.5 million from $8.5 million in just a year.
“They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board, which is scheduled to hold a statewide meeting Thursday to discuss the waitlisted capital defendants. “We’re still in crisis; it’s just a different crisis. And now they can’t shift any more money around, so we could be facing an even greater crisis next year.”
Louisiana is the only state in the nation whose public defenders are funded primarily by traffic tickets, supplemented by a modest state contribution. In part because of changes in police practices, ticket revenue has declined since 2010, causing the annual budget gap.
The state’s public defender board does not employ its own capital defense teams but farms out the work to a handful of private law firms, nonprofits and individual attorneys. Those firms now say they are at capacity and ethically constrained from taking on any more work, according to Dixon and the attorneys.
“Imagine a conveyer belt of [murder cases], and we’re grabbing them off as they come. But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor,” said Ben Cohen, an attorney for The Promise of Justice Initiative, the advocacy wing of one of the capital defense firms.
The waitlisted murder defendants may still get a temporary lawyer who can argue that the case should not go to trial until there is money for a defense. But they won’t get a full legal team, even though lawyers argue the first months of a capital murder case can be crucial. Evidence can be lost or destroyed if too much time passes. An attorney armed with evidence can also convince the state not to seek the death penalty at all. Of approximately 150 first-degree murder defendants indicted in Louisiana since April 2016, prosecutors have ultimately declined to pursue execution in at least 100.
The complaints ring hollow to prosecutors, who came out in force at the state Capitol last year to support the bill resolving the defender crisis. They point out that even though less than 1 percent of all criminal cases in Louisiana are capital murders, about a fifth of the state’s indigent defense budget still goes to the attorneys who handle them.
Louisiana had 73 people on death row as of May, but the state has executed only one person in the past 15 years. Like many states, Louisiana cannot secure the drugs needed to administer the penalty.
“The defense that the state of Louisiana provides people charged with capital crimes, Donald Trump would have trouble affording,” Hugo Holland, a longtime death penalty prosecutor who is now a chief lobbyist for the state district attorneys’ association, said in an interview. “The bottom line is this simple: you guys over there at your boutique law firms, do your fucking job and provide anyone represented by you with constitutional representation… Stop intentionally thwarting the administration of justice.”
Holland and other supporters of last year’s shift in funding believe the capital defenders have unreasonable standards. They could, for example, devote fewer resources to every defendant, rather than an expensive team of two lawyers, an investigator and a mitigation specialist. They could also take more than five cases a year, which is an American Bar Association standard adopted by the state Public Defender Board in 2007.
Defenders argue the stakes are too high to return to a time when one capital defender could have as many as 30 cases at once. Louisiana has consistently led the nation in wrongful convictions per capita. Since 2000, more than 96 percent of Louisiana death sentences have been reversed by higher courts, The Advocate in Baton Rouge reported last year.
“It’s an awful moral conundrum,” Cohen said. “Like a doctor who has to perform 12 heart surgeries in a day, but then his staff gets cut in half. He can either do a crappier job on these life-or-death procedures, or he can take fewer of them and make the others wait.”
The question now is whether the newest wait list will trigger further action by the legislature.
If not, the capital defense offices are considering suing under Louisiana case law that says if there is not funding for the defense, the courts may simply halt prosecutions. Alternatively, judges may begin appointing private counsel to the backlogged defendants, as they did last year to mixed results.
Either way, say attorneys for the poor, Louisiana must ultimately commit more total funding to the legal defense of the impoverished.“The fact is, capital defense is very costly; that's just the nature of the beast,” said Nick Trenticosta, a capital defense attorney in New Orleans. “If you want to have the death penalty, you’re gonna have to pay for it. You can’t try to put a man to death on the cheap.”