Longtime judge faces first challenger _lowres

Judge Todd Hernandez

Court mandates shouldn’t reshape Louisiana’s indigent defense system. Instead, public defender agencies and legislators should make it work as intended.

Last month, District Court Judge Todd Hernandez refused to dismiss a class action suit challenging the entire structure as unconstitutional. Defendants — Gov. John Bel Edwards and officials with responsibility for system operation — had asked for dismissal on the basis that, under the Louisiana Constitution, plaintiffs couldn’t force the state to spend more money to redress what plaintiffs called inadequate defense.

All told, in 2017 public defense cost around $52 million a year. Around $20 million comes from state taxpayers, which the state apportions to districts based mainly on demand and financial need. The remainder is provided by local governments, mostly through fees on court convictions, criminal bonds that are issued, licensing of bonding agents, and on applications for indigent defense.

Critics claim that in a number of districts, high caseloads and few resources prevent adequate defense. Essentially, extraneous factors such as law enforcement discretion in levying charges (especially on traffic infractions) and how prosecutors use diversion programs (which sidesteps court fees) greatly influence how local funds are generated. Local revenues can vary widely among districts and even within a district over a few years.

Case plaintiffs argue that these factors restrict adequate representation, something that courts should remedy. Through his ruling, Hernandez is allowing that argument to move forward with a trial later this year. But it would be judicial overreach to allow the plaintiffs to prevail.

This is, simply, really all about money. Were the state to triple its annual appropriation and distribute it in a targeted fashion, this would provide adequate funding that addresses the challenges some local institutions have in generating revenue. But such a move would essentially enable some local defender offices to evade responsibility for better funding their operations.

Here's an example of how unevenly local institutions are handling their finances. Right now, across the state, each person applying for indigency services in the court system is supposed to pay a $40 fee. State law automatically confers indigency status if someone is already on public assistance, and other factors can qualify an individual, too.

But local officials can waive all or part of the fee, leading to wildly differing collection rates across districts. For example, the proportion collected for new cases in the 26th District (Bossier/Webster) was 28.6 percent and in the 22nd (St. Tammany) 35.9 percent, but in the 14th (Calcasieu) just 3.7 percent and in the 41st (Orleans) only 2.3 percent.

Indigent is indigent wherever you live, so differing collection rates come from varying degrees of diligence. If Orleans would collect at the 18.8 percent average proportion of the next nine largest districts, that would produce over $120,000 more a year, or enough to hire three lawyers.

Jeff Sadow: With John Bel Edwards running on his record this time, lightning won't strike twice

Then there’s expansion of diversion programs by local prosecutors that pad their bottom lines. District and most municipal courts charge the guilty $45 per conviction, to be remitted to local defenders, but this goes uncollected by diverting cases from court. That practice has mushroomed over the past few years with the number of traffic tickets adjudicated in court down considerably.

Judicial overreach isn’t needed to address public defense woes. Public defenders helping their own causes and legislators reining in DAs are.

Jeff Sadow is an associate professor of political science at Louisiana State University-Shreveport. He is author of a blog about Louisiana politics at www.between-lines.com and writes about Louisiana legislation at www.laleglog.com. Follow him on Twitter, @jsadowadvocate or email jeffsadowtheadvocate@yahoo.com. His views do not necessarily express those of his employer.

Our Views: Still a crisis brewing in indigent criminal defense