Louisiana's New Public Defender System: Origins, Main Features, and Prospects for Success

• Author: Richard Drew
• Pages: 955-987

I am grateful to Professor Cheney Joseph, Greg Riley, Jim Boren, David Carroll, Paul Marx, and Pete Adams for generously sacrificing their time for interviews. Professor Stuart Green was a patient and thoughtful advisor. My parents, Harmon and Jean Drew, provided a good deal of practical advice in getting started, along with their usual unstinting support. Any errors that remain after such a large amount of help are entirely my own.

Page 955

I Introduction

In 2007, the Louisiana legislature enacted a landmark reform of the state indigent defense system.¹ It established a Louisiana Public Defender Board to enforce statewide performance standards and administer the state indigent defense fund. The legislature has also significantly increased state spending on indigent defense since 2005. These changes were driven by a broad coalition of groups pressing for improved indigent defense, as well as Louisiana Supreme Court decisions mandating better support as a matter of state constitutional law.

Considered in isolation, this may seem like a straightforward victory for equal justice and the rights of criminal defendants. However, the lasting success of these reforms is uncertain. Louisiana has tried several times over the past forty years to put its indigent defense system on a sound footing. At best, each round of reform provided only temporary relief. Effective change was prevented by the legislature's reluctance to fund the system adequately and by a persistent suspicion of centralized state control over local indigent defense.

The campaign to create the new Public Defender Board was carefully crafted to surmount these obstacles, but there is no guarantee they will not return with undiminished force to hinder the new system's implementation. In particular, adequate funding for indigent defense is an inherently fragile achievement, vulnerable to sudden shifts in the political environment. If the new public defender system is eventually starved of money, the Louisiana Supreme Court may have to grapple again with moving the political branches to comply with the constitutional right to counsel. Yet the experience of Louisiana and other states teaches that judicial action alone cannot make up for deterioration in the political coalition supporting reform.

Apart from the funding issue, the Public Defender Board faces an immense organizational task in asserting its control over Louisiana's heretofore radically decentralized system for providing indigent defense. The new statutory scheme is actually an intricate compromise between advocates of state control and defenders of local autonomy. It abolished the local boards that were the Page 956 foundation of the old indigent defense framework, but it did not establish a consolidated statewide system. Instead, local indigent defense bodies are left in a fundamentally ambiguous status. Local chief defenders have independent local funding and control of everyday operations, but they must now answer to the state board in terms of performance standards and in getting approval for their annual budget. In places where significant vested interests have grown up around the local provision of indigent defense, this may well prove a formula for conflict and resistance to central authority.

The new board may find itself hampered in these disputes by certain features of the statutory scheme. There is a substantial risk of delay as a result of the massive rulemaking task the new board is given. Confusion may also follow from serious statutory ambiguities on the balance of power between the local chief defenders and the new regional offices the board is authorized to create. Finally, the state board's ability to control local defense systems is hindered by the statute's relatively narrow grounds for the dismissal of local chief defenders.

Part II of this article examines the background and origins of the new reform. Part III describes the main features of the bill and the conflicting interests that shaped them. Part IV sets out potential obstacles to its effective implementation and recommends some changes to the statutory scheme that could help alleviate them.

II Background And Origins Of The New System

A The First Round of Reform: Gideon's Aftermath in Louisiana

In the wake of Gideon v. Wainwright making publicly provided counsel for state indigent defendants a federal constitutional right,²Louisiana in 1966 instituted a system of local indigent defender boards to better administer the right to counsel in the state courts.³Prior to Gideon, Louisiana already had a statutory right to counsel for indigent defendants charged with a felony.⁴ Trial judges assigned counsel from an informally kept roster of local lawyers, who generally received no compensation for their work.⁵ However, Page 957 under Louisiana's pre-Gideon system no legal representation was provided when an indigent defendant chose to plead guilty.⁶

The initial post-Gideon system required the district judges in each judicial district to appoint a district indigent defender board.⁷These boards took over maintenance of the local rosters of appointee lawyers and were given the power to manage their assignments.⁸ They were also charged with administering the first dedicated source of public funding for indigent defense. By state law, a new fee was added to the fines and costs assessed for each criminal conviction in a district court.⁹ The money collected was then transferred directly to the local indigent defense fund.¹⁰ These funds were intended to allow appointed counsels to get some reimbursement for their expenses, making indigent defense less of a burden for the bar.¹¹

These local boards funded by local court fines formed the enduring institutional foundation of indigent defense in the state, surviving basically unaltered until 2007. Despite this longevity, a number of basic inadequacies were apparent from the very beginning. The initial court fines were both too low and too narrowly applied to secure even the limited goal of reimbursing assigned counsel for their expenses.¹² Besides the revenue issue, the lack of any state body overseeing the local boards meant there was no way to ensure that basic standards for providing indigent defense were followed consistently across the state. Funding shortfalls and the lack of central authority were the main impetus for all subsequent efforts at reform.

B The Second Round of Reform: A New Constitution, Expanded Local Funding, and a Stillborn State Board

In 1974, Louisiana enacted a new constitution that bolstered the right to counsel in the state by enjoining the legislature to "provide for a uniform system for securing and compensating qualified counsel for indigents."¹³ In 1976, the legislature attempted to follow through on this mandate with the Uniform Indigent Defender Act.¹⁴ The Act expanded local court fine Page 958 funding by increasing the amount of money that could be collected from each defendant and expanding the range of offenses to which the fine applied.¹⁵ Instead of being limited to criminal convictions in district court, a fee was assessed in all courts of original jurisdiction to all convictions above the level of parking violations.¹⁶ In effect, this meant indigent defense would be largely funded by a charge added onto traffic tickets, since they have long made up the bulk of criminal violations by number.¹⁷

Given the increased income, local systems were able to support delivery methods beyond assigning local attorneys and compensating their expenses. Thus, in the same law, indigent defense boards were given the power to establish public defender agencies staffed by salaried attorneys and managed by a local chief indigent defender. Some years later, the legislature also authorized a third permissible method of delivery: contracts with lawyers in private practice to take on the district's public defense work.¹⁸

In the years since local districts were given the power to choose their mode of operation, almost all have used some mix of these three different methods. There are two broad tendencies. Currently, seven of forty-one judicial districts rely predominantly on public defender agencies with salaried employees.¹⁹ The rest of the judicial districts provide the bulk of their services through contract attorneys.²⁰ Regardless of how it organizes its services, each district retains the power to assign cases to private attorneys whenever the local system has reached the limit of its capacity or when there is a conflict of interests between defendants making it inappropriate for a local public defender office to represent both.²¹

Besides expanding local funding and allowing local boards some choice in their mode of delivery, the legislature in 1976 also tried to add some degree of state oversight to the mix.²² The Page 959 Uniform Indigent Defender Act created for the first time a state board to help manage indigent defense.²³ However, the...