Over the past month, the number of people in jail in New Orleans has dropped from 1,100 to 820, thanks largely to the efforts of Bunton’s staff.
Even as Bunton’s offices work to free people from the jail, arrests for low-level crimes have continued. The Louisiana Supreme Court has canceled jury trials in the state, but New Orleans courts are still holding hearings via teleconference. Bunton mentions one recent client who was arrested and spent a night in jail on a three-year-old trespassing charge. “Because of the statute of limitations, it wasn’t even prosecutable,” he says. “We had another client arrested for possession of a single Oxycodone tablet. Another for failure to return a rental car on time. We need to be limiting law enforcement’s interactions to serious crimes only, for the safety of everyone.”
The number of inmates testing positive at the jail in New Orleans jumped from two on Friday to 15 on Monday. As of Monday, 29 jail employees had testified positive, as well as 10 employees of the jail’s health-care contractor. There have been other outbreaks at detention facilities all over the state, including five deaths at a federal prison.
Depopulating jails has become the main priority of most Louisiana public defenders. “It isn’t just about protecting our clients’ health, although that’s very important,” says a public defender in Calcasieu Parish, who spoke on the condition of anonymity. “But people understand that if the jails get infected, you’re going to have guards and other jail staff infected, who will then take it home to their families. Some of the people who get out will be infected, and they’ll take it home, too. So this isn’t just getting people out of jail. It’s about protecting the community.”
But even as they try to depopulate the jails and continue to represent their clients through all of this, Louisiana’s public defenders face uncertainty about their job security. While the state’s prosecutors are funded with appropriations from the state legislature and from parish budgets, public defenders aren’t considered state employees. Instead, a fine added to traffic tickets funds about two-thirds of public defense statewide. Bunton says about 30 percent of his New Orleans office budget comes from tickets, but other public defender offices in the state rely almost entirely on them.
It’s a bizarre way to fund legal defense for the poor. The salaries of public defenders are dependent on people being found guilty of crimes, some of whom may be their own clients. The situation grew more absurd a few years ago when several prosecutors in the state began paying police officers to offer motorists a “diversion” program. Motorists cited for an infraction could either accept a conventional ticket, or they could avoid the ticket simply by writing a check to the local district attorney’s office. The latter option prevents the infraction from showing up on a person’s driving record. The program helped prosecutors divert a significant source of funding from public defender offices to pad their own budgets.
Thanks to the novel coronavirus, traffic ticket revenue has all but evaporated. The stay-at-home order from the governor’s office naturally means fewer people are driving, which means a significant decline in the number of traffic tickets. Police across the state have also been instructed to stop pulling people over for minor offenses — a policy Bunton and other public defenders support, but one that essentially vaporizes that source of funding. “We’re already outspent by the district attorney’s office by about 2-1,” says Bunton. “Our budget is a rounding error for the police department’s budget. So this is the other fight we now have on our hands. We’re going to be clawing and scratching for funding.”
The only other source of funding for indigent defense in the state is the Louisiana Public Defender Board (LPDB). The state legislature appropriates funding to the board in each budget, which the board then distributes to district public defender offices around the state, as well as several nonprofit organizations who provide defense in capital cases, juvenile cases and other subspecialties in criminal law. The virus happens to be hitting near the end of the fiscal year in June, which means it’s also the time in the calendar when public defender offices are particularly reliant on revenue from fines and fees.
It’s the perfect storm for a fiscal crisis. The LPDB estimates it will need to come up with $8.5 million just to remain solvent. “That isn’t the figure needed to provide an adequate defense,” says Robert Noel, head of the Public Defender Association of Louisiana and the chief public defender for a district in the northeastern part of the state. “It’s what they need to keep the doors open.” Bunton says his own office is looking at an $800,000 shortfall. In all, 18 of the state’s 44 district public defender offices are in danger of insolvency.
At a meeting this month, the LPDB passed, but then rescinded, a complete cut to funding of the Louisiana Center for Children’s Rights, the nonprofit contracted to handle the appeals of people sentenced to life without parole as children. Representing those prisoners’ appeals is critical to complying with recent Supreme Court rulings guaranteeing them a hearing.
In response to the funding crisis, the LPDB passed a resolution last week instructing district chief public defenders to make drastic cuts to their budgets, along with instructions on how staff can file for unemployment or paycheck protection. That created a lot of confusion, with some chief defenders initially interpreting the resolution as a mandate for immediate staff cuts.
In some parts of the state, there were already layoffs of staff and termination of contractors even before the LPDB resolution. One former full-time public defender, who spoke on the condition of anonymity, was laid off earlier last month, just a couple days after the statewide stay-at-home order. He has since filed for unemployment. He continues to represent his clients without pay, but not all defendants are so lucky: “I have friends in other offices where they have terminated many contractors, leaving thousands of clients incarcerated with no representation or point person.”
Most public defender offices in the state are trying to get to the end of the fiscal year, after which they’re expecting to get new funding from the LPDB. But there’s fear that even the new state budget may not bring enough relief. Louisiana’s state budget is heavily reliant on oil revenue, and oil is trading at its lowest level in two decades. There’s also a lot of uncertainty about whether public defenders will see any portion of funding from the coronavirus relief packages. “We see politicians rush to provide aid to police and prosecutors, without them even having to ask,” says Bunton. “Meanwhile, we’re fighting to stay solvent.”
District chiefs also anticipate a backlog of cases after the virus calms down, and when that post-virus backlog arrives, they’ll have to face it with an unmanageable shortage of staff and resources. “We’re going to be slammed, no doubt about it,” says Noel of the state public defender association. Bunton agrees. “We’ll be in a constitutional crisis from the moment we start cutting staff. And it will continue until the stay-at-home order is revoked. We’ll be asked to do things we simply don’t have the staff to do. Constitutional rights will be at stake. And we’ll be at a legal standstill.”
One day after they thought they’d been furloughed, several public defenders in Calcasieu Parish filed an omnibus motion on behalf of more than 1,000 people currently incarcerated in the parish for low-level crimes, including drug possession and technical probation violations. They’ve requested a hearing for later this month.
“It’s hard right now,” says one of the attorneys who filed that motion. “There’s so much uncertainty. We’re working without knowing how much longer we’re going to be paid. Some of my colleagues are working from home while also watching their kids. But what can we do but keep working? We’re terrified for our clients and their families. We worry they’re going to get sick. We worry some of them will die."