Defending the Accused in the Incarceration Nation

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By Matt McKinney


The United States of America is home to less than five percent of the world’s total population but almost a quarter of the world’s prisoners. Leading the charge is the state of Louisiana, which up until recently, imprisoned more people than any other state in the country, and New Orleans, its most populous city, remains the wrongful conviction capital of the United States. Public defenders offices across the country are tasked with combating this legal epidemic. They are charged with providing attorneys for those who cannot afford one, a right guaranteed by the Sixth Amendment to the United States Constitution and affirmed by the Supreme Court unanimously in the 1963 case of Gideon v. Wainwright. Still, many have called into question whether or not all criminal defendants are truly benefitting from this constitutional protection. Public defenders offices throughout the nation are woefully underfunded, and as a result, their lawyers are underpaid and overworked. Among the offices most affected by the current situation is Orleans Public Defenders (OPD). In a city stained by its dark history of racial discrimination, with a penchant for mass incarceration and wrongful convictions, OPD and its roughly sixty staff attorneys are responsible for representing eighty to ninety percent of the accused.

Lindsey Hortenstine, Communications and Development Director at OPD, laments not only the lack of funding her office receives but also the way in which funds are provided: “We consistently advocate for more funding and resources and speak out about the broken user-pay system Louisiana uses to fund its criminal justice system, and in particular, public defense.” The “user-pay” system Hortenstine refers to is the process by which “users,” or those being funneled through the criminal courts pay to keep those courts functioning through fines and fees. Given eighty to ninety percent of the city’s population cannot afford to hire their own attorney, it doesn’t make much sense that they be expected to fund the entire criminal justice system, and yet, they are expected to do just that. This system has been challenged in federal court, with one local judge, Harry Cantrell drawing the ire of US District Judge Eldon Fallon who ruled that Cantrell is particularly conflicted. Cantrell sets bail for defendants coming through the Orleans Parish Criminal District Court, but his own court relies on bail money and other fees to function. Incredibly, despite this obvious conflict of interest and a number of other legal challenges, the user-pay system persists and Cantrell is still setting defendants’ bail. Hortenstine goes on to say, “The overreliance on fines and fees to fund public defense has created inadequate, unreliable and unstable funding structures that directly impact our ability to provide meaningful and thorough representation to poor people in New Orleans. Fines and fees make up roughly 30% of our budget.” Even more appalling is the fact that OPD has been forced to seek donations to supplement their budget. Last year, they received about 30,000 dollars this way, helpful assistance of course, but not nearly enough money to properly equip the office. The result is attorneys working far more cases than they can adequately prepare for. Hortenstine estimates the average caseload of OPD staff attorneys ranges from one hundred to three hundred: “In general, those with mid-level felony cases average 150 cases at any given time. Those with lower level cases can have 250-300.” This has a direct impact on the criminal justice system in New Orleans, especially on the city’s most vulnerable, as no attorney can work enough hours a week to effectively prepare for fifty cases, let alone three hundred.

Jimmy Miller has been an OPD staff attorney for more than three years now. Asked what the most difficult part of his job is, Miller replies simply, “Time management. You’re never done.” It’s easy to imagine why this is his answer. Like most of his colleagues, Miller’s caseload is astounding. At any given time, he has approximately seventy open felony cases, not to mention a plethora of misdemeanor cases and additional responsibilities. Elaborating on the previous question, Miller adds, “There’s the compunction that goes along with knowing you could always do more.” This is an admirable thing for a public defender to say, and it seems to be a consistent view among OPD’s staff attorneys. His colleague, fellow staff attorney Laura Bixby, told me, “My favorite part of this work is the human connections that I make. I’m able to see very tangible results of my work (e.g., someone getting out of jail). And even when I’m not able to “win” a case or even achieve what I consider a good outcome, I can still provide a voice for someone who is usually voiceless in our court system, and I can speak with my clients and treat them as human beings worthy of consideration.” Both Miller and Bixby have great intentions and a willingness to work to fulfil those intentions, but anyone who knows anything about the underfunding of public defenders nationwide, would have to wonder, how much can these attorneys be realistically expected to accomplish for their clients? Miller works, on average, seventy to eighty hours a week, well within the range of your typical corporate lawyer but for significantly less money. The difference is in the number of cases. Divide seventy felony cases by seventy hours, and you get one hour, per case, per week. This is not fair to public defenders nor is it fair to New Orleans’ accused. The Louisiana State Supreme Court agreed with this sentiment, ruling in 2004 that it was the responsibility of the state legislature to secure the representation of indigent defendants, going so far as to demand halting prosecutions if this burden was not met. Yet, the situation only appears to be getting worse with recent recommendations from Governor John Bel Edwards to slash public defender budgets throughout the state.

Unfortunately, to make matters worse, OPD’s problems don’t stop at funding. Miller seemed to believe funding may not even be the biggest issue in New Orleans’ criminal justice system. He decried “systemic racism” in addition to “a lack of parity in access to resources.” He also mentioned “fear of the multiple bill,” a term which basically describes the process by which prosecutors use a defendant’s past criminal conduct to demand tougher sentences. Ultimately, there is only so much public defenders can do; a defendant’s life rests in the hands of judges and prosecutors who have their own agendas and marching orders. Miller described his relationship with the district attorney’s office as “adversarial,” but Bixby took it one step further: “What we really need is reform in the district attorney’s office and with the judges. Our judges are elected in partisan elections, which is not true in all states. This creates bad incentives for judges, I think they’re very concerned with ending up in the news for being too lenient on criminals, and they constantly need to think about fundraising and who’s going to donate to their campaigns. So those things become bigger priorities rather than administering justice. The same is true with the DA’s office. There’s been a wave of progressive reform across the country with DA’s, but it hasn’t made it here yet.” She is hopeful for change in the upcoming DA election in 2020 but sickened by the current situation where a defendant’s fate is often sealed before they even reach a courtroom. They are left with the heart-wrenching decision to either take a plea deal or risk heavy sentences, a strong contributing factor to New Orleans’ not so impressive title as the wrongful conviction capital of the United States. The Bureau of Justice Assistance at the United States Department of Justice estimates anywhere between ninety and ninety-five percent of cases at the state and federal level end in plea deals. This number is undoubtedly higher for Orleans Parish and particularly, its indigent defendants. OPD in no way forces its clients to plead out. In fact, the office has one of the highest trial success rates in the state, but between fear of the multiple bill, systemic racism, and overworked attorneys, options are limited. This reality once again calls into question whether these men and women are truly being supplied with their constitutionally guaranteed right to an attorney.

It should be noted that there may be a light at the end of this dark tunnel. This cause is gaining traction, both in legislatures and popular culture, with shows like Last Week Tonight with John Oliver dedicating entire segments to the crisis. Criminal justice, as a whole, is becoming an important political issue, and reforms are garnering bipartisan support. Just this past December, Congress passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, or First Step Actin an attempt to reduce recidivism. This legislation includes important prison reforms and will help a substantial number of people leave prison and reenter society, which is great, but more can be done to improve the process by which so large a number of men and women end up in prison in the first place. As of right now the men and women who do the necessary work of defending the nation’s most vulnerable are the only real line of defense. Fortunately, public defenders are dedicated to their jobs and to their communities. They embody what it means to be a public servant, and persevere in their work despite all the obstacles thrown in their way. Reflecting on the job, Miller summarized, “The truth and reality is you don’t choose cases, and some are really tough. The reason you’re doing your job is because everyone is entitled to a defense.”

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