After a monthslong effort, the Louisiana Public Defender Board recently reached a compromise on a new plan intended to more fairly distribute state funds used to pay lawyers who represent indigent defendants.
The plan is the product of two different proposals, one from consultants who reviewed the public defender funding system and the other from a collaborative effort among the majority the state's district public defenders, said State Public Defender James “Jay” Dixon. While still far from thriving, he said, the plan should prevent the state's 42 offices from failing.
"Under that plan, everyone will make it," Dixon said. "It's very complicated to get a formula that works for everyone, and because there's not enough money, every single plan we come up with has winners and losers."
Area district defenders agree the compromise is an improvement on what was previously considered a confusing and often lopsided system of divvying up the state funds. But without enough money allocated for that distribution process, East Baton Rouge Parish District Defender Mike Mitchell said it's impossible to be satisfied.
"At the very least, everyone is being treated equally under the state board for distribution," Mitchell said, calling the new plan a success in that regard. "I don't think any of the plans were sufficient due to the fact the amount of funds we receive from the state are insufficient."
Louisiana's public defender offices are notoriously dependent on traffic fines and court fees, an arrangement unlike any other in the country. That funding method creates a volatile and unpredictable foundation for the legal representation guaranteed to all accused under the U.S. Constitution.
The secondary revenue source for the local public defenders — often more reliable but less substantial — comes from the state's yearly allocation, which is doled out to the districts by the Public Defender Board.
Dixon said the new distribution formula relies in large part on the plan developed by consulting agency Postlethwaite and Netterville, which considered each district's population, its caseload by type of crime and ratio of the local funding to hours worked in determining how much money the district should receive.
Public defender offices in Louisiana are notoriously dependent on traffic fines and court fees for their primary revenue. That creates what ma…
"It's all based on data," Dixon said, adding that this plan did not take into consideration some of the peculiarities of some districts or historical funding schemes.
The other plan developed by the Public Defender's Association of Louisiana, a group led by Mitchell, created two separate formulas for how money was sent to the smaller and larger districts. Dixon said the final hybrid plan adopted the portion of that plan that dealt with strengthening the position of often forgotten smaller districts.
But because the amount of money available under the new plan is still limited, almost all districts are still worried. In fact, under the new plan, Baton Rouge, Lafayette and the Orleans public defender offices are receiving less money from the state than they did last year.
Those three district defenders all said they are concerned about their offices' operation throughout the upcoming fiscal year, beginning in June, especially as they are all already struggling — short attorneys, investigators and local funding. And, Dixon said, the hybrid plan is only approved for fiscal year 2019, which means deliberations for further distribution formula will have to begin again soon.
Public Defender Alan Robert, of the 23rd Judicial District, which includes Ascension, Assumption and St. James parishes, said he’s concerned that the distribution plan still factors in local funding and prior spending — hurting him for his attempts to be frugal and because his district has strong local funding, often an offshoot of the presence of a heavily traveled interstate.
“People are rewarded for their historically high spending,” Robert said. "(It's) still not fair ... but we can live on it.”
In one of the state's smaller districts, Rhonda Covington, district defender for East and West Feliciana parishes, said she didn't even try to get involved in the development of the new distribution plan — simply because she didn't have time.
"We're just basically at their mercy," Covington said, who is the only full-time attorney in the 20th Judicial District. Her state funding will be more than cut in half under the new plan, which she said will only cripple her more.
“I find it extremely unfair," Covington said. "If you are a client of the public defender's office in a rural area, you do not get the same services as you would get in the city.”
A state law that passed almost two years ago attempted to address that issue, requiring the Public Defender Board to give a minimum of 65 percent of its overall funding directly to public defender offices, which resulted in about a 25 percent annual increase to the district offices, from about $16 million to $20 million.
Prior to that law, Dixon said, about half of the budget went to nonprofit organizations across the state to supplement all districts' work that do death penalty case representation, post-conviction and juvenile work. These groups can travel the state working in all regions, Dixon said, instead of having each district staffing the specialized services.
A bill that advanced out of the House criminal justice committee this legislative session would further increase the proportion of state funds designated only for local districts, not to nonprofits, to 70 percent. State Rep. Sherman Mack proposed the bill hoping to better support the local public defender offices, but Mitchell said it would do the opposite.
"Nonprofit funding is absolutely necessary," Mitchell said. "They do a tremendous service to the system and to the districts.”
But 15th Judicial District Defender G. Paul Marx, whose district includes Lafayette, Acadia and Vermillion parishes, said the nonprofits, which are primarily based in New Orleans, disproportionately help the districts in their backyard. He said they would benefit from more funding directly in southwest Louisiana.
Orleans District Defender Derwyn Bunton disputed that claim, saying the organizations travel the parish from Shreveport to Lake Charles. He also said the nonprofit work should not be cut simply because the state cannot find further funding for public defenders. Bunton said he hopes as legislators continue to focus on criminal justice reform, they look closely at a crucial piece to that puzzle: public defenders.
“I don’t think you succeed success in (in limiting jail population) without addressing public defenders,” Bunton said. “If you want to get folks to jail fast, just don’t resource their defenders.”