The Effective Delivery of Constitutionally Mandated Indigent Defense Services: A National Perspective on Louisiana Shubi Deoras The American Bar Association (ABA) Kate Jones National Association of Criminal Defense Lawyers (NACDL) David J. Carroll National Legal Aid & Defender Association (NLADA) Presented before the Louisiana Indigent Defense Assistance Board (LIDAB) April 8, 2003

“[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth ….That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.” -- Justice Hugo Black Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963).

Extension of Gideon ’s Promise:  Direct Appeals - Douglas v. California, 372 U.S. 353 (1963);  Custodial Interrogation - Miranda v. Arizona, 384 U.S. 436 (1966);  Juvenile Proceedings - In Re Gault, 387 U.S. 1 (1967);  Preliminary Hearings (Critical Stages) - Coleman v. Alabama, 399 U.S. 1 (1970);  Misdemeanors (possible imprisonment) - Argersinger v. Hamlin, 407 U.S. 25 (1972);  Misdemeanors (suspended sentence) – Shelton v. Alabama, 535 U.S. 654 (2002).

Public Support for the Right to Counsel Americans overwhelmingly believe the right to counsel is a fundamental part of due process Public support a strong system of public defenders in each state

Public Support for Public Defenders Access to reasonable resources for trial-related expenses (DNA, Experts, etc.) Resources to Hire Investigators Counsel who carry Reasonable Caseloads. Lawyer Experienced in Criminal Defense

Reason for Public Support Justice should not be determined by how much money a person has Competent counsel prevents the innocent from going to prison Providing Competent Counsel is a Fundamental Right in the U.S.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963). “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” -- Justice Hugo Black

Taking Gideon ’s Pulse:

The Lack of State Funding PROBLEM: Non-State funding constricts in inverse proportion to the demand for indigent defense services  Unemployment  Worker Flight  Local Revenue  Social Service Needs  Crime

State Funding & Court Costs Spotlight on: LOUISIANA

Louisiana  Louisiana 64 parishes have the primary responsibility for funding the indigent defense system  Jurisdictions required to create a local Indigent Defender Board (IDB) appointed by the district judges  Primary funding of indigent defense services comes from court costs collected on criminal offenses (including traffic tickets) and ranging up to the statutorily authorized maximum of $35 per case.  LIDAB awards “district assistance fund grants” to local indigent defender boards

Taking Gideon ’s Pulse: Spotlight on: ALABAMA

Alabama  “Fair Trial” tax is applied on all criminal charges & civil filings  Unlike LA, all fees collected are placed in a common statewide “Fair Trial Tax Fund”  AL augments the “Fair Trial Tax Fund” with state funds to cover the remaining costs for providing services

Alabama & Louisiana Comparison Population Louisiana Alabama 4.65 Million 4.64 Million Poverty Rate19.6% 16.1% $32.5 K Median Income $34.1 K

Alabama & Louisiana Comparison Incidents of Crime Louisiana Alabama 242,344202,159 Violent Crime30,440 21, % Violent Crime Rate 10.7%

Alabama & Louisiana Comparison State $ for Indigent Defense Louisiana Alabama $7.5 Million$28 Million State $ Cost Per Capita$1.70 $6.42 $31 Million (approx.) Combined Court Fee & State Money $37.7 Million Percentage of State Money 24.1% 74.3% Combined Cost Per Capita $6.94 $8.44

Alabama Universally Criticized for Failing to Ensure the Right to Counsel Population LA ALCOMNOR State $$7.5M $28M$40M$50M $76M $ per Capita $1.70 $6.40$9.36 $10.47 $23.09 CO, MN & OR all have lower Poverty Rates & lower Crime Rates

Taking Gideon ’s Pulse: 100% State Funded Primary & Alternate PD System 100% State Funded PD & Assigned Counsel System 100% State Funded Contract System

Louisiana Issues:  LA Reliance on Flat Fee Contracts  Dearth of Reliable Objective Data Without Data and Reliable Performance Measures, Government Cannot Assure Tax-Payers that Resources Are Used Effectively & Efficiently – There is Currently No ACCOUNTABILITY in the Indigent Defense System

Louisiana Issues:  LIDAB Flat Funded Since its Inception  LIDAB Funding NOT Contingent of Compliance with LIDAB Standards  There is no correlation between a parish’s ability to assess/collect court costs and the resources levels needed to ensure adequate, constitutionally-guaranteed right to counsel.

Louisiana Issues:  Misdemeanor Defendants Under-Represented Reported Felonies: 52,400 Misdemeanor/Felony Ratio: 3:1 Estimated Misdemeanor Cases: 157,200 Estimated Cost Per Cases: $147.90

Louisiana Issues:  If true: less than 2 hours is spent on average per case