Disturbing Question — How on Earth Can a Public Defender Program Rely on Court Imposed Fees for its Budget?

I am not sure I can stand this.

According to its own communication director, the New Orleans public defender relies on fines and fees imposed by the court for 41% of its budget (NOLA CityLab here).

New Orleans’ Office of Public Defenders’ communications director Lindsey Hortenstine tells CityLab that court fines constituted 41 percent of the office’s budget in 2014. But public defender services, which assist defendants who can’t afford a private attorney, are otherwise starved of the capital needed to fulfill their obligations, as is much of the city’s court system. So the costs are absorbed by poor defendants who are basically “paying to be prosecuted,” says Adrienne Wheeler, executive director of the New Orleans-based Justice and Accountability Center of Louisiana.

Indeed, as  reported by the New York Times here, this is part of a broader problem in which these fines and fees also support the courts and the prosecutors.

On Thursday, [six] plaintiffs in a class-action lawsuit against the criminal district court here, among others, alleging that judges and court officials have been running an “illegal scheme” in which poor people are indefinitely jailed if they fall behind on payments of court fines, fees and assessments. The suit describes how fees are imposed with no hearing about a person’s ability to pay, and how nearly all components of the local criminal justice system — the judges, the prosecutors, the public defenders — benefit financially to some degree.

“The extent to which every actor in the local New Orleans legal system depends on this money for their own survival is shocking,” said Alec Karakatsanis, a founder of Equal Justice Under Law, a civil rights group, and one of the lawyers who filed the suit. The funding arrangements at the court have been particularly controversial here in recent years, in the wake of allegations of abuses in the way money raised from defendants has been spent.

But in general, said Mr. Karakatsanis, who filed a similar suit in Ferguson, Mo., in February and helped force changes to jailing policies in Montgomery, Ala., last year, “the effort to fund local court systems on the backs of the very poor is not an aberration.”

The article goes into detail about abuse of the fees fund by judges for things like premium health insurance.  But the one that goes beyond shocking for me is the inclusion of public defenders.

Unless I get this wrong, the person who is meant to defend you against these charges, and, at least in theory, address whether you can pay them, depends for those fees for 41% of this salary.

Does the word “conflict” not come into mind?  See e.g. Tumey v. Ohio
273 U.S. 510 (1927)(reversal; “The question in this case is whether certain statutes of Ohio, in providing for the trial by the mayor of a village of one accused of violating the Prohibition Act of the State, deprive the accused of due process of law and violate the Fourteenth Amendment to the Federal Constitution, because of the pecuniary and other interest which those statutes give the mayor in the result of the trial.”).

Sounds like all convictions should be voided from when this started to happen, and the contemporaneous objection rules are of no help in saving the conviction when the person who was meant to make the objection had a financial incentive not to do so.

Kudos again to Alec Karakatsanis, and also to the Brennan Center, that has done a lot on this issue. But, shame to the rest of us for somehow not being enough on this.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
This entry was posted in Access to Counsel, Attorney-Client, Bail, Court Fees and Costs, Defender Programs, Poverty. Bookmark the permalink.

3 Responses to Disturbing Question — How on Earth Can a Public Defender Program Rely on Court Imposed Fees for its Budget?

  1. Claudia says:

    In the UK– magistrates are quitting in protest of high fines. http://www.express.co.uk/news/uk/597038/Magistrates-quit-protest-new-fines-rules
    They are protesting that the fines are not means tested and too high. The magistrates are aware that many of those fined are unable to pay them and don’t consider it justice to fine or incarcerate those who can’t pay. In the US, are we back in the times of Dickens’ sending people (read people of color) to the Marshalsea for being poor? Our state legislatures need to wake up and be accountable and fund the systems appropriately to deliver Justice regardless of race, gender, national original, or ability to pay fines and fees.

  2. Pingback: Jim Greiner’s Comment on the Inherent Conflict Respresented by Funding Public Defenders by Fees Charged Defendant’s and My Response | Richard Zorza's Access to Justice Blog

  3. Jim Greiner says:

    Richard, Everyone, I desperately want to be wrong about the following reasoning. Please tell me that I am, and why.

    “When the gods wish to punish us, they answer our prayers.” Oscar Wilde.

    1) What do we think will happen to the New Orleans public defender’s funding if a lawsuit alleging a conflict of interest is successful in declaring the present funding scheme unconstitutional? Do we think the state legislature or the city council will find a new source of revenue to replace all of the money that previously came from fines and court fees? Most of it? I think not. There might be a partial restoration, but probably not the full 41%, resulting in a net loss of funding for the public defender. Legislators lack the integrity to deal with public defender funding in a principled manner.

    2) If that is all correct, do we think that the court system will respond by declaring that criminal defendants have received ineffective assistance of counsel when, as a result of a sudden loss of substantial funding (maybe not 41%, again, some might be restored, but a loss), public defender caseloads become even more absurd than they already are? No one who has read Stephen B. Bright’s piece (103 Yale L. J. 1825), which documents how courts gave no ineffective assistance relief to defendants whose lawyers were asleep, drunk, or high during trial, could think so. And did I mention that the cases discussed in Bright’s piece were all capital cases? Judges lack the integrity to deal with public defender funding in a principled way.

    3) In our heart of hearts, do we think that public defenders in New Orleans, or in most other jurisdictions, are under-litigating cases so as to preserve their budgets? Most of the public defenders I have met, and the students who want to be public defenders, are stark raving lunatics. They kill themselves to defend their clients, and will do so up to and beyond the point of personal starvation. And as they starve, they think not a bit about where their next paychecks are coming from.

    4) Public defenders have always been government employees, just like prosecutors, just like judges. We do not think that this arrangement violates conflict of interest principles because we depend upon an ethos within public defender offices to create the adversarial process upon which we depend. If that ethos persists, see #3, above, does it matter whether the government earmarks funding from a particular source, as opposed to sweeping fines and fees into a general fund, from which it doles out a comically and embarrassingly inadequate amount of funding for public defenders?

    5) If ##1-4 are correct, is my own personal revulsion to this funding arrangement yet another case of a member of the elite class caring more about symbols than about facts on the ground for indigent criminal defendants? Symbols are important, no question. But am I willing to decrease the quality of representation received by indigent defendants so that I can sleep a little better at night?

    5) None of the above necessarily applies to CJA attorneys; does anyone know how they are funded?

    Again, I would like to be wrong about the above. Would someone please explain to me where I got it wrong? Because this funding arrangement smells like last year’s broken port-a-potty.

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