At Fault Lines, Noel Erinjeri writes about the ACLU’s lawsuit against the Orleans Public Defender and its chief, Derwyn Bunton, following the decision to refuse to take on more cases than it can ethically and constitutionally handle.
In its introduction, the complaint on behalf of three detained defendants both explains the obvious and makes a critical error:
3. However, OPD has refused to accept Plaintiffs as clients due to budgetary shortages and excessive caseloads. OPD has instead placed Plaintiffs on a waiting list for appointed counsel. OPD’s refusal to represent Plaintiffs means that they must languish indefinitely in jail without counsel until OPD secures adequate resources to provide them with an attorney.
That these three defendants “languish indefinitely in jail” is certainly true. That they do so because of OPD, however, is certainly wrong. The Orleans Public Defender didn’t arrest them. They didn’t set bail. They certainly didn’t set unmakeable bail. And the OPD neither has the wherewithal to “secure adequate resources,” nor has somehow neglected to do whatever it is the ACLU apparently thinks they should have done to “secure adequate resources.”
4. As long as OPD refuses to represent Plaintiffs, their prosecutions cannot proceed. Meanwhile, Plaintiffs have no access to an attorney for critical pretrial functions that would ordinarily be performed by defense counsel, such as conducting a preliminary examination to challenge their arrests and bail conditions; investigating the allegations; filing motions to preserve potentially exculpatory evidence; or negotiating with the prosecution.
That these three criminal defendants are constitutionally entitled to effective assistance of counsel is beyond question. That this fault is attributable to OPD, however, is not. The Orleans Public Defender didn’t tell the state, “no thanks, guys. Keep your money. We just don’t feel like representing any more defendants.” Had that been the case, the ACLU’s complaint would have been directed at the right party doing the wrong thing. It’s not.
5. The public defender’s budgetary crisis and its denial of counsel to Plaintiffs both result from the State of Louisiana’s chronic underfunding of its public defender system. While the legislature yearly appropriates funds for public defense, the public defender system overwhelmingly relies on locally generated fines and fees for revenue.
As shown, the ACLU, unsurprisingly, notes the obvious, that OPD suffers from “chronic underfunding.” Most public defenders suffer from the same malady, and one can find almost no public defender office claiming that it’s funding is so generous that it doesn’t need more money, thank you very much.
But then, the ACLU blames the underfunding in Orleans on the state’s method of funding public defense. That too is a mistake. How the state chooses to establish funding is nobody’s business but the voters. That the state must, somehow, adequately fund public defense to fulfill a constitutional mandate is the point.
Tax ’em. Collect fees, to the extent that doesn’t otherwise violate the Constitution, rent out rooms in the governor’s mansion if they want. Whatever. Fund public defense.
9. Plaintiffs bring this class action under 42 U.S.C. § 1983 on behalf of themselves and those similarly situated who have been or will be denied counsel indefinitely because OPD has refused to represent them.
10. Plaintiffs seek a declaratory judgment that OPD’s indefinite denial of counsel violates their Sixth and Fourteenth Amendment rights to counsel, as well as their Fourteenth Amendment right to due process and the equal protection of the laws.
So OPD lacks the money to hire sufficient public defenders to handle the caseload, and it’s OPD violating the constitutional right to counsel? Does the ACLU not see the gaping hole in its reasoning? Noel tees up the obvious conundrum:
Just what the hell are they supposed to do? Turn people away and they’ll rot in jail, and if and when they get counsel precious time has been lost. Take them all in and it’s like trying to drink from a firehose…along with a constitutional mandate that not a single drop of water hit the floor. And the defendants are caught in the middle.
Is there a solution? There is, but no one wants to hear it. Provide the money to adequately staff and fund the public defender’s office, and let them do their jobs.
So why does the ACLU sue the OPD when it must realize that the OPD is neither at fault nor in disagreement with the central contention that defendants need to be defended and that it takes money to hire sufficient lawyers to handle the caseload? Is it that “no one wants to hear it,” or that everybody knows it but nobody outside of the handful of people paying attention gives a damn? Poor criminal defendants are hardly as much of a fun way to allocate tax revenues compared, say, with a football stadium.
So why didn’t the ACLU sue the state? Why didn’t the ACLU bring writs of habeas corpus on behalf of detained and unrepresented defendants who “languish” in jail because judges have set bail while the state refuses to fund a constitutionally adequate defense?
I suspect that this is the first step in an unfortunately necessary strategic plan by the ACLU, to establish the existence of a constitutional violation and to do so with a defendant, the OPD, who is both disinclined to dispute the existence of that violation, and can’t raise the defenses that the state could, such as separation of powers when it comes to compelling the state to allocate funds to public defense.
Thrown in, for good measure, is the probability that no Louisiana judge wants to end his career by being the guy who ordered the state to spend its money on poor criminals, as it would be perceived, rather than good times.
Had the ACLU gone after the real culprit, the legislative and executive branches of government, they could expect a response that they have done their part, establishing a public defense office, and it’s now up to the OPD to do its job of defending. Problem solved!
The adequacy of the solution would be hotly disputed, but it then gets into the vague question of what, in a hypothetical sense, is sufficient for effective assistance of counsel. For anyone familiar with Strickland v. Washington, it’s clear that the demands are so low as to be satisfied by the fact that a lawyer can stand up (not to be ableist, but) and breathe. Thanks, Supreme Court.
Or to look at this differently, OPD’s inadequate funding creates an obviously untenable situation, which is being paid for by indigent defendants languishing in jail for lack of counsel. While OPD can’t do a damn thing to fix the problem, other than provide ethically incompetent representation, the challenge to the constitutionality of this massive failure has to start somewhere.
Whether this strategy will prevail remains a mystery, as the bottom line remains that the state just doesn’t want to pay for enough attorneys to do the job, fulfill the mandate and provide effective assistance of counsel, as the Sixth and Fourteenth Amendments demand. But something has to give, as the wheels of justice can’t keep grinding up the bodies of the indigent because the rest of government has better, funner, things to do with its money. And because there is no clear and certain means by which to compel government to fulfill this constitutional mandate.