Public defender offices in Louisiana are notoriously dependent on traffic fines and court fees for their primary revenue. That creates what many regard as a conflict of interest by marrying defense of the indigent to the whims of sheriffs who write tickets and prosecutors who choose what cases to take to court.
Less understood is the secondary way Louisiana pays its public defenders: an annual state appropriation divvied out to individual districts through the Public Defender Board. It’s intended as a reliable supplement to the unpredictable fines-and-fees system, and makes up about one third of public defender revenues across the state.
But the way the board distributes the money to public defenders in the state’s 42 judicial districts is anything but predictable.
The board is working with public defenders on a fix, but there are arguments over how to do it. Some want the process to be simpler and more objective; others worry that oversimplification will fail to account for their workload. All say they want to fulfill their constitutional obligations to represent poor defendants, but none can easily do it when their funding matrix is as unpredictable as it is inadequate.
Public defenders are “fighting over whatever the scraps the legislature will throw,” said Walt Sanchez, a Lake Charles criminal defense lawyer and former Public Defender Board member.
The scraps have increased some since last year, when a new law required the board to give a minimum of 65 percent of its overall funding directly to public defender offices. That resulted in a 25 percent annual increase to the district offices, from about $16 million to $20 million. But the board’s formula for distributing the money is “almost indecipherable,” said Robert Noel, vice president of the Public Defenders Association of Louisiana.
“There is a formula, but for the life of me I can’t explain it to you,” said Noel, who serves as the deputy chief and interim chief in the 4th and 5th districts, respectively. “Some districts have seen massive discrepancies from one year to the next, others have not.”
The board’s chief executive, James Dixon, said the existing formula is scientific. He said it factors caseloads, the severity of cases and overhead costs, minus locally generated fines-and-fees revenue.
The unpredictability, he said, stems from the subtraction of local revenue, which is calculated based on the previous year’s haul. That part of the equation is problematic but necessary, he said, since the board needs some way to project if district offices will run out of money.
“You can’t make that projection without talking about local revenue,” Dixon said. “There’s no way of getting around it that I can see. If someone can show me a way, I swear I will kiss their feet.”
Some districts have suffered double whammies: local revenues one year yield lower state funding the next year, during which there are fewer traffic tickets. The 40th district in St. John Parish, for example, received a mere $2,819 in state funds during the fiscal year that ended in June, the result of a steady flow of tickets the previous fiscal year. But the St. John Sheriff’s Office reduced its ticketing as the new fiscal year began, forcing the public defender office to eat its reserves for most of the year.
“We reversed course, practically overnight,” said Richard B. Stricks, the 40th District public defender.
The 19th District in Baton Rouge, meanwhile, has seen its city court revenue plummet from $1.4 million in the 2015 calendar year to $500,000 this year, and state funds have not kept pace. The 19th District public defender, Mike Mitchell, warned that the board at its meeting Thursday he will stop accepting new cases if things don’t improve soon.
Stricks and G. Paul Marx, public defender of the Lafayette-based 15th district, have put forth their own proposals for how the board should divvy the state money. Stricks suggests a formula based on population, caseload and number of judges, weeding out overhead considerations such as computers and retirement benefits. Marx wants a population-only formula.
Stricks and Marx say the board’s flaw is subjectivity in how it calculates what public defenders need. Stricks says this should be limited to what state laws require public defenders to provide, which would include personnel salaries and office space.
Marx, a vociferous critic of the current formula, accuses the board of acting arbitrarily. The districts that lobby loudest get larger shares of the pie, he said.
“Whoever they pay attention to gets the money, rather than objective facts and data,” Marx said. “I think the formula is a way of explaining something that had already been decided.”
Marx provided charts showing that variables such as jury trials and life sentences rise and fall in concert with the number of people in a given district. A population-based formula, Marx argues, would reduce it to a single, objective metric that accounts for district-by-district nuances. Marx points out that his district, which covers three parishes, typically receives less than half of the 41st district in New Orleans, despite serving a similar-size population base.
Derwyn Bunton, the public defender in New Orleans, doesn’t buy Marx’s argument. Population, Bunton said, is nothing more than “a very good calculator of where we live.”
Bunton said he is more interested in confronting the fines-and-fees local funding system, which does not exist outside Louisiana. That systemic feature is the destabilizing factor, he said, and territorial infighting distracts from it.
“The amount of acrimony that all of this is generating is, for me and for many, very frustrating,” Bunton said. “I might make St. John mad, or Lafayette might make me mad. But in the end we are all going to have some distribution. The larger fight, you don’t know what the outcome will be.”