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 waitlist. The New Orleans public defender’s office began refusing clients, leaving hundreds to sit in jail without representation.
This year, there is another waitlist. 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 Governor 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, a 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.