Jim Greiner has submitted a brilliant and challenging comment on my recent post about the funding of 41% of the New Orleans Public Defender from court fines, fees and assessments. It is worth very serious consideration. Here is the full text, with my thoughts below:
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.
Of course, Jim may well be right, and the reality is both that criminal defendants are not in fact harmed by this, and that if the 41% stream were cut off, then defendants would be worse off by far.
I do not have any personal knowledge of the Orleans Public Defender, but from their website, they would appear to be just the kind of PD Jim describes above, and it is hard to imagine anyone actually pulling punches for fear of losing their salaries. But sometimes, perceived conflicts can be almost as bad as real ones. If I were represented by a PD and knew the funding was like this, I might, at a minimum, be reluctant to give the benefit of the doubt to my lawyer if I knew of the funding mechanism. As a minority in New Orleans, I might feel this even more intensely.
But I am not so sure I agree with Jim on the necessary consequences of making the right change in the budget system. Firstly, and most simply, it would be easy to put the fees right into the general fund, with an equivalent amount replaced from that fund, and, in the longer term, needs based budget setting, possibly with an escalator formula driven by changes in other budgets, preferably not fine/fee based ones. In other words, an intervening court (presumably Federal) could simply craft a remedy that would remove the potential incentives and thus the conflict. The net budget effect would be zero, at least in the short term. (It must be admitted, however, that the budget and political systems there are a total disaster, in which rationality seems the first casualty (website of defender).
Of course, the deeper problem is that the conflicts come not only from the fact of the public defender funding source, but from the ways that similar flows fund so much of the rest o court operations. We may indeed be more worried about conflict in the decisions those people make than we are about public defenders.
But fixing this deeper problem can not be avoided, because of the harm that these incentives produce has already been well proved.https://accesstojustice.net/2015/05/25/the-broader-lessons-of-ferguson-and-baltimore-are-much-more-challenging-opportunities-to-be-part-of-the-solution/.
In the end, justice and access to justice are public goods, and have to be treated as such.
Richard Zorza's Access to Justice Blog 
Here is the link for my prior post http://www.buzzfeed.com/maryanngeorgantopoulos/lawsuit-claims-scheme-by-new-orleans-courts-targets-the-poor#.neja9XJR8
Interestingly enough, class actions are now being filed on the issue of fines and fine enforcement in some jurisdictions, including New Orleans and Missouri. The lack of fact finding on ability to pay seems to be one of the issues at stake:
“No inquiry was made into their individual circumstances, their ability to pay, or whether they constituted a danger to the community or a risk of flight prior to the setting of this secured money bond,” according to the suit. “Some languished in jail for days and others remained locked up for weeks.”
The impact this pro forma incarceration has on communities of color and low income communities is harsh and disproportionate, so the conversation on the race equity impact of fines and enforcement of fines by courts needs to had.
There is a video from inside a court room in Georgia that was reported in the NY that shows how the hearings can go: Times.http://www.nytimes.com/2015/09/05/us/a-surreptitious-courtroom-video-prompts-changes-in-a-georgia-town.html?_r=0
I agree with Richard that courts are public goods (for very good reasons) so the legislatures need to fund them adequately–otherwise we will continue to have a skewed system of justice that works for those who have–and not the have-nots.
In response to Jim’s comment below, would like to think that a judge would indeed order the legislature to go back and change the funding source, but would put in the interim order that the legislature was not free to fix its constitutional violation on the backs of the of the victims of the original violation. That constitutes pushing for asserting a constitutional violation, itself surely a violation.
As to the Ferguson point, I was trying to reference the huge social costs of the criminalization of poverty and near poverty than such revenue generation represents. Never before this have I thought of courts as systematically driving people into poverty.
Hi, Richard, interesting. Two thoughts:
1) There are a variety of ways that an intervening court could craft a remedy that would not involve a decrease of funding for the NO PDS. But how many of them are likely to occur? Everything I know about courts suggests that a judge finding for a plaintiff would say: “The current funding scheme is illegal. New Orleans, come up with another one that removes this perceived conflict, or I’ll do it for you.” New Orleans comes up with another scheme, one that decreases funding, such as by simply sweeping the money that previously came from court fees into the general fund and NOT replacing it. When the plaintiffs go back to court, the judge says, “The absolute level of funding was never something that judges could set. That’s a legislature’s job. Unless the NO PDS is rendering ineffective assistance of counsel (which must be handled on a case by case basis in each criminal prosecution, and by the way, we never give relief based on ineffective assistance), then I’m done.”
So, we agree that there are lots of things that a judge addressing a conflicts-of-interest lawsuit could do. Which of those things is the most likely?
2) Your Ferguson point has me scratching my head. I don’t have a firm grip of the facts in Ferguson, so I’d love to be corrected here. But I thought that in Ferguson, court fees WERE going into the county’s general fund, at least in part. That’s what led the county politicians to go to law enforcement and to judges over and over again to say, in essence, “Cops, judges, we don’t want to raise taxes this year, but we need more revenue. Can you squeeze a 10% increase out of the money that you’ll be bringing in this year?”. How does it help to make the NO’s funding scheme look more like Ferguson’s? If all this is right, then it suggests that the problem is not whether money from court fees and fines goes into the NO PDS’s budget directly or instead makes a pitstop in the municipality’s general fund. Instead, the problem is a culture that views fees and fines as revenue sources for the government instead of as a means to implement the purposes of criminal law. Is there any evidence of such a culture in NO? If there is, that’s the story.