Pleading the Sixth: The aims of public safety are in conflict with the need for law enforcement to generate indigent defense revenue in Louisiana. But as Louisiana’s problems have become a major focal point of America’s broader right to counsel crisis, media outlets have failed to underscore a key failing: local judges have no authority to appoint unqualified lawyers in jurisdictions where public defenders are refusing more work. The 6AC explains.
The Fourteenth Amendment to the U.S. Constitution requires each state to provide a competent lawyer, under the Sixth Amendment, to every person accused of a jailable offense who cannot afford to hire her own attorney. Louisiana’s inadequate funding mechanism means that there are too many poor defendants for Louisiana’s public defense attorneys to handle each and every case effectively, as is their constitutional obligation. Accordingly, public defense attorneys throughout the state are invoking their ethical duty to refuse to take on any more work, as explained in a March 30, 2016 letter to Governor Edwards by the American Bar Association.
Faced with a growing number of unrepresented defendants, Louisiana’s judiciary began conscripting local lawyers to take on criminal cases. Though some lawyers believe it is their obligation to the bar to assist the court without compensation, the larger problem is that not all lawyers have the skill sets necessary to defend the criminally accused effectively. Just as you would not seek out a dermatologist to perform brain surgery – despite both being licensed doctors – defending the accused requires a lawyer trained in criminal defense, as opposed to an attorney steeped in real estate or divorce law.
However, there are two aspects to this story that deserve closer scrutiny.
A. Louisiana’s unique indigent defense funding structure makes law enforcement responsible for generating the majority of indigent defense funding, which can be at odds with the aims of public safety
Historically, the State of Louisiana funds only about a third of all right to counsel services through the traditional state budget process. The majority of funding is generated through a fee assessed against all defendants adjudicated guilty by a criminal court. At first glance it may seem reasonable to place the onus for funding the public defender system on the backs of those convicted of committing a crime. However, approximately 85% of people charged with felonies and misdemeanors in Louisiana are indigent — by definition poor, and therefore typically unable to pay the assessed fee. In reality the majority of funding comes through fees assessed on traffic tickets, and in these cases the fines and fees are usually paid without the necessity of a court hearing or public defender.
To be clear, Louisiana is the only state in the nation to fund right to counsel services in such a manner, since there is an inherent conflict between the aims of public safety and the need to fund a constitutional obligation. Reliance on fee-generated funding of public defense places law enforcement officers in the unenviable position of dramatically decreasing indigent defense revenue when they uphold public safety concerns. For example, a Louisiana Sheriff may determine it is in the community’s best interest to focus his own limited resources on the prevention of a particular type of crime (e.g., the spread of opioids or methamphetamines). Objectively, that decision to shift police personnel from traffic enforcement to drug prevention may be the exact best thing for public safety. At the very least, it is a public policy that local voters in Louisiana can either support or reject when re-electing a Sheriff in a future election. However, the rededication of police resources in such a hypothetical would result in a decrease in public defense revenue while contemporaneously causing an increase in the need for public defense attorneys to represent those accused of drug crimes.
Putting law enforcement in this position simply makes no sense. The Louisiana legislature needs to free law enforcement from the onus of generating public defense funding and instead allow them to promote public safety as they see fit and as situations dictate.
B. Louisiana judges have no statutory or constitutional authority to conscript unqualified lawyers to represent criminal defendants
In the 1979 case of Ferri v. Ackerman, the United States Supreme Court determined that “independence” of appointed counsel to act as an adversary is an “indispensible element” of “effective representation.” Two years later, the Court determined in Polk County v. Dodson that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” Observing that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the Court concluded in Polk County that a “public defender is not amenable to administrative direction in the same sense as other state employees.”
This was confirmed in Strickland v. Washington. In that case, the Court stated that “independence of counsel” is “constitutionally protected” and that “[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.”
In 2007, the Louisiana legislature created the Louisiana Public Defender Board (LPDB) to insulate the provision of defender services from undue political or judicial interference. That is, the legislature abolished former practices by which the local presiding judge could control indigent defense appointments – practices that had often led attorneys to act in the interests of the judges in order to secure the attorney’s next contract or appointment, rather than advocating in the sole interests of the defendant, as constitutionally required.
Statutorily, except for the inherent regulatory authority of the Louisiana Supreme Court to regulate the practice of law, the LPDB has “all regulatory authority, control, supervision, and jurisdiction, including auditing and enforcement, and all power incidental or necessary to such regulatory authority, control, supervision, and jurisdiction over all aspects of the delivery of public defender services throughout the courts of the state of Louisiana.” [See: La. R.S. 15§147(A)] This power, given to the LPDB, includes the requirement to promulgate standards to ensure that services are provided by competent counsel, including standards to “ensure that public defenders are qualified to handle specific case types which shall take into consideration the level of education and experience that is necessary to competently handle certain cases and case types such as juvenile delinquency, capital, appellate, and other case types in order to provide effective assistance of counsel.” [See: La. R.S. 15§148(B)]
And, lest one were to think that the emergency need to appoint counsel in the midst of a financial crisis outweighed these statutory requirements, the Louisiana legislature ensured that, even in the “event of a catastrophic event, natural or otherwise,” the board (LPDB) shall have the power to establish an appropriate delivery system to maintain the competent delivery of services from among the delivery methods provided for by this Section. [La. R.S. 15§165 (G)]
In other words, judges have no constitutional or statutory standing to appoint unqualified counsel. Indeed, appointing unqualified counsel to “keep the dockets moving” is the very essence of undue judicial interference. That is, a judge places his own desire for court efficiency above the rights of indigent defendants that are guaranteed by the US Constitution.
What is the answer?
One place to start is decreasing the need for public defenders in the first place. It is true that the answer to every government crisis cannot be increased government spending. The right to counsel attaches only if there is a potential loss of liberty in a criminal or delinquency proceeding. A concerted, non-partisan effort focused on diverting low-level, non-violent offenses out of the criminal justice system and/or re-classifying the sanctions on petty crimes to non-jailable violations are just two ways to move forward on this critical issue.
However, this is just a policy choice. State government has a constitutional obligation to ensure that in every criminal case the prosecution’s evidence is subjected to rigorous adversarial testing. Such adversarial testing, the U.S. Supreme Court reminds us, can only be realized where the defendant is provided with unfettered access to Sixth Amendment right to counsel services.
[T]he right to be represented by counsel is by far the most pervasive, for it affects [an accused person’s] ability to assert any other rights he may have. – United States v. Cronic, 466 U.S. 648, 654 (1984)