New Orleans at Pivotal Crossroads for Indigent Criminal Justice

By Christopher Stella, Elon University, Elon Law (2017)

Hurricane Katrina is arguably the worst man-made disaster that the United States has ever seen. The storm wrecked homes, scattered families to the wind, and established a new kind of chronology for the city of New Orleans: before the storm and after the storm. One silver lining to the aftermath of Katrina was the formation, due to federal intervention, of a full-time public defender office. Progress has been resisted and gains have been hard fought in just about every way since the storm, from infrastructure to police reform, and now the city of New Orleans is at a pivotal crossroads, the choice to regress or to maintain progress and move even further forward; this point is made completely apparent when looking at public defense in New Orleans.

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Prior to the storm, the office was a loose confederation of private defense attorneys contracted to do public defense work. In many smaller jurisdictions, the pre-Katrina model used in New Orleans is favorable, both economically and practically, because the number of cases heard by defense attorneys is smaller. This system was problematic even prior to Katrina because of the large caseload of each attorney, and the sheer volume of indigent clients prosecuted by the Criminal District Court. Additionally, for a city of several hundred thousand, a contract defense system is abnormal.

In the midst of the storm, these attorneys weren’t able to be contacted by their clients, and the state of the office was so poor that the clients weren’t actively trying to contact them.

Since the storm, the office spearheaded by Derwyn Bunton, has become a tour-de-force with a small army of full-time professional defenders spending countless hours working to advance their clients’ interests. In a system that has a foundation of consistency, a standardized and professional public defense system allows for a foreseeable quality of defense. Since Katrina, the Orleans Public Defender has become consistent and modernized, with a reputation for being a committed and quality service for the indigent accused in the Orleans Parish. The office serves over eighty percent of the city’s accused, largely people of color. These data mean that eighty percent of the accused in New Orleans are indigent. Think about the implications of these numbers! State laws as interpreted and carried out by the courts, are always harsh, and occasionally deserve the moniker of draconian. They often fail to take into account issues of poverty or the actual circumstances of the people caught up in criminal justice system and usually incarceration.

These laws are often construed so strictly and punishments so often severe because of the electoral nature of the judicial system in Louisiana. Like many other southern states, the state of Louisiana elects its judges and district attorneys. This system can lead to electioneering on the part of judges, rather than rational decision-making based on concepts of law and justice. The election of district attorneys also muddles the process of justice, as plea-deals and dismissals, which are often in the hands of district attorneys, are harder to come by and tend to be worse deals than in jurisdictions in which the district attorney is not an elected position.

Mandatory sentencing guidelines were first introduced in The United States to help eliminate racial disparities in the sentencing of those convicted. In practice these guidelines have proven problematic, and may have even worsened the problem of racial disparities. While the discretion of the judge and jury over sentencing for a convicted defendant has been limited, the discretion of the prosecutor has been heightened. Mandatory minimums, for those facing incarceration, are sometimes used by the district attorney to strong-arm plea deals. For clients who may actually be innocent, being compelled to confront the prospect of facing the rest of their natural life in prison versus taking a plea deal that may isolate them from loved ones and friends for ”only” a decade is sometimes a very real and undesirable “choice.”

The situation worsens when a “guilty as charged” verdict is handed down. For example, the re-entry program at infamous Louisiana State Penitentiary at Angola, where non-violent offenders are sentenced from eight-to-ten years and eligible for release after two years, allows a special opportunity for offenders deemed “moral citizens” by lay-clergy who often conflate religiosity with morality. If designated “moral citizens,” they may complete proficiency courses in automotive repair, HVAC, or fiber optics, in the hope that whey will gain employment and housing after their release. As implied, there are several troubling aspects to this program, but the most glaring is that most of these men were eligible for probation, and the population of this program is largely white in a prison that disproportionally incarcerates people of color.

The prison at Angola was formerly a slave plantation, and a short time later became a new kind of plantation when the state of Louisiana agreed to rent its prisoners to an entrepreneur. The entrepreneur treated these rented prisoners so poorly that in the early twentieth century the state took control of the land. To this day chain gangs still work at gun point for two cents per hour picking vegetables and tending to livestock in sweltering and lethal summer heat at gunpoint. The continuing racial injustice is palpable.

The situation for clients on trial is tough. They face unfavorable laws and unsympathetic judges and juries. Take, for example, the broad-reach of the prior bad acts rule in Louisiana. Almost any act a district attorney thinks could be relevant or shows a pattern of bad behavior, whether legal, illegal, proven or not , may be introduced to brand the client as unfavorable in the eyes of the judge or jury hearing the case.

Further, the state public defender board and the municipalities have cut funds for the Orleans Parish Public Defender. Serious questions, some reported recently in the national news, raise doubts about whether these budget cuts, in light of the current budget shortfall, in excess of a million dollars, are lawful. They may deny defendants access to a speedy trial and lead to incompetent defenses for clients due to burdensome caseloads of the defenders.

Although federal intervention to establish a full time public defender office after Katrina was a step forward in Louisiana, much remains to be done in order to achieve justice for indigent, mostly African American, persons accused of crimes in New Orleans. There are no easy solutions, but one thing is for certain: the system must keep in mind the humanity of defendants, which is currently often obscured by “tough on crime” policies and the election of judges and district attorneys in Louisiana. In the meantime, the Orleans Parish Public Defender’s office works vigilantly to protect the rights, dignity, and interests of its clients, who confront chronically difficult situations. It stands as a bulwark respecting their humanity in in an otherwise inhumane situation.

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