Don’t look now, but there’s a power grab in Louisiana — one that might well destroy the ideal of equal justice in that state.
Some 85 percent of people in the state’s criminal justice system are too poor to afford their own attorney. Now a plan is moving forward for the governor’s office to wrest control of all “powers, duties, and responsibilities” over the state’s public defense system from the state’s public defense board. Now that he has signed the legislation, public defense is in the hands of a single state public defender, who serves at the governor’s pleasure for a two-year term.
Remy Starns, the current chief public defender, is a former prosecutor. The indigent defense’s former board, which was made up of stakeholders including the bar, law schools, and interchurch conference, has now been turned into a purely advisory body. There are no longer structural safeguards that ensure the independence of the indigent defense system.
Perhaps the most alarming part of the governor’s reform is to eliminate every single public defender job across the state and go instead with contract defenders. Last week, Starns announced up to 51 percent salary cuts for public defenders and encouraged them to open up their own private practices to make ends meet.
Under a contract system, individual lawyers or law firms bid for a contract; generally, the jurisdiction will award contracts involving impoverished defendants to the bidder who offers to do the work in bulk at the cheapest price. But such approaches to delivering legal services often fail those who need legal representation — and potentially violate the state’s obligation to ensure the Sixth Amendment right to counsel.
All one has to do is look toward Georgia as an example of why going this route would be moving in the wrong direction. In counties with a contract defender system, sometimes a single lawyer represents hundreds of clients. In Georgia’s McDuffie County, for instance, a single contract lawyer represented 850 defendants over a five-year period. It doesn’t take a genius to figure out that no real investigation or any other kind of adequate representation can take place under such conditions.
Such systems put extreme pressure on court-appointed lawyers to close cases as quickly as possible while doing the least amount of work — what critics have called “fast food justice.” Lawyers carrying such a high caseload are forced to essentially coerce their clients to plead guilty even when they might have a good defense to the charges. And if a case does go to trial — few do — overwhelmed contract defenders are more likely to make errors that cost a person their freedom or life.
Crisp County, Ga., had a contract system. Samuel Moore was locked up for 13 months for loitering and never once met his overworked contract defender. When they finally remembered they had a guy locked up, embarrassed prosecutors eventually dismissed the charges. But no one told Moore he was free to go until four months after those charges were tossed. The state’s mistreatment left the poor man’s life a mess.
Moore’s was hardly the only egregious story. As such travesties of justice leaked out, Georgia’s state legislature finally created a statewide public defender in 2003. Georgia also created an office to represent poor people charged with capital crimes, while Louisiana has now cut such funding.
Why is Louisiana going backwards?
Although the governor has justified these changes through promises of increased transparency and savings costs, there have been reports that some elected officials have long wanted to weaken the public defender board because they are unhappy that taxes are going to pay for the defense of poor people charged with serious crimes as well as those who claim they were wrongly convicted and seek exoneration. Additionally, the governor is committed to speeding up executions, and the playbook for doing so historically is to give people inexperienced and overmatched court-appointed lawyers.
If you worry about the number of innocent people behind bars, exposing the public defense system to excessive belt-tightening, political reprisals, and potential corruption may make things worse. Louisiana already has the highest number of exonerations per capita. Louisiana is also the second poorest state in the nation, behind only Mississippi. When public defense is inadequate, the burdens fall unequally — not just on poor people, but also racial minorities.
It’s little wonder that Louisiana has been No. 2 or 3 in the country in term of the highest percentage of a state’s death row being made up of racial minorities (71.4 percent as of 2023, behind only Texas and Nebraska). If the state’s public defense system loses its independence, Louisiana has a shot to move up to No. 1 on these other two infamous lists and earn a trifecta.
By contrast, as Eve Brensike Primus, a law professor at Michigan, has argued, public defender officers are more cost-effective than the alternatives due to economies of scale. With greater predictability regarding the budget, jurisdictions can deliver the same or better legal services to poor people by embedding necessary resources and expertise, with fewer ethical violations and egregious errors requiring reversal of convictions on appeal. Competent lawyers also reduce unnecessary pretrial detention and unwarranted sentences, further reducing incapacitation costs. Recent studies in Texas showed that a public defender system cost up to 31 percent less per misdemeanor and 22 percent less per felony compared to assigned-counsel systems. Studies done on New York estimate that taxpayers could enjoy savings of anywhere between $125-200 per case.
An institutional commitment to equal justice requires thinking long term rather than short term. If there is a lesson here, it is not to let sensational crimes or cost-cutting warp one’s sense of responsibility to provide equal justice for all.
Robert L. Tsai is professor of Law at Boston University and the author of “Demand The Impossible: One Lawyer’s Pursuit Of Equal Justice For All (Norton 2024).”