NEW ORLEANS—Thomas Frampton was running late—literally.
The lanky, 32-year-old public defender hurried through the high-ceilinged, marble-paneled hallway of the Orleans Parish criminal courthouse, clutching a briefcase filled with legal documents. Earlier that morning, he had represented a client who pled guilty to a drug charge, but that went long. Now, he was rushing to cover motions hearings for another group of defendants.
Frampton slid into a bench in the back of a hushed courtroom and unfolded a daybook with scrawled notes showing where he had to be when. He sighed as he realized how behind he was.
“It’s like trench warfare,” Frampton told me. “There are periods of boredom punctuated by terror.”
Frampton is currently assigned to about 150 open felony cases at the same time: robberies, assaults, drug sales, some of which could come with mandatory life sentences if defendants are convicted. In some cases, he can only spend a few minutes talking with clients before he has to start representing them. Thanks to years of ever-deeper funding cuts and staff reductions, Frampton and other public defenders in the city typically handle 300 different felony cases every year, compared to the national standard of a maximum of 150 cases.
Since January, they’ve started throwing in the towel: public defenders have refused to take the cases of some clients, leaving them sitting in the city’s overcrowded, decrepit jail without legal representation, waiting for some resolution. So far, more than 110 cases have been refused or put on a waitlist, with defendants trapped in limbo.
Refusing to represent indigent defendants is almost certainly unconstitutional. But so is representing a client without the resources to give them a full defense.
Louisiana has the highest incarceration rate of any state, and New Orleans has the highest incarceration rate of any city in the state. Seeing as the U.S. has the highest incarceration rate of any country in the world, you could make an argument that no other jurisdiction puts a greater percentage of its people in prison.
And now, some of the poor people who fill the city’s jail aren’t getting any legal representation.
Public defenders by themselves can’t fix our broken criminal justice system. They can’t reverse trends that people of color are much more likely to face charges, or rewrite legislation that mandates long prison sentences. But they can turn the tables for their defendants, make the difference between freedom and incarceration.
“Nobody becomes a public defender to tell people no, I can’t help you,” said Derwyn Bunton, the city’s chief public defender. “But right now, that’s the situation we’re in.”
When Clarence Gideon, a poor defendant who was charged with theft, wrote to the Supreme Court, all he wanted was a lawyer. When the Court decided in his favor in 1963, recognizing a right to an attorney for all criminal defendants, Gideon helped clear the path to a new profession: the public defender.
But in New Orleans, that right to counsel has been spotty for years. In the decades before Hurricane Katrina hit the city in 2005, there wasn’t even an office of full-time public defenders. Instead, private attorneys would be assigned to cases and work them part-time. All the defense files would be kept in a tiny, mouse-infested room in the courthouse with two ancient computers and one phone line.
Like most things in New Orleans, the history of public defense is divided into pre-Katrina and post-Katrina eras. When the storm hit, the city’s criminal justice system ground to a halt, with inmates sent around the state, some waiting in rural jails for months without hearing a word from their public defender. In the aftermath, reformers organized to recreate the public defense system and leveraged the flowing federal funding.
The Orleans Public Defenders became its own independent office staffed with full-time attorneys. But the post-Katrina federal grants slowly dried up. Over the last five years or so, the office has suffered withering funding cuts from the state. Now, the budget to represent the thousands of impoverished criminal defendants in the city is $5.9 million, down from a peak of $9 million in 2011. There are only 42 attorneys on staff, down from more than 70 five years ago, making annual salaries of roughly $45,000 to $80,000.
Unlike most other states, funding for public defenders comes largely from fines and fees imposed on defendants. Every defendant who takes a public defender has to pay $40. And any defendant who is found guilty or pleads guilty pays an additional $45 fine. That leads to the bizarre fact that public defenders here technically get paid more to lose their cases than win them.
“The system is funded largely on the backs of the folks who go through the system,” Bunton said. “We’re depending on the poorest in our community for the lion’s share of our funding.”
Public defenders across Louisiana, where eight out of 10 defendants qualify for free representation, are facing the same budget shortfalls. And it’s a national issue: Steve Hanlon, a Saint Louis University law professor who studies public defense, said that Louisiana and New Orleans are only the worst examples of underfunded and overworked public defender systems around the country. “I think New Orleans and Louisiana are ground zero in this fight,” he said.
The solution would be for the state legislature to change the way public defenders are funded. It could completely rewrite the fee-based funding system, and instead give public defense a stable, sufficiently large appropriation based on their workload. But any effort to do that in the short term will be a hard sell with legislators (we’ll get to that in a minute).
Soon after the Orleans Defenders started rejecting clients, the local branch of the American Civil Liberties Union sued them on behalf of three defendants who don’t have legal representation. “We both want the same thing,” Marjorie Esman, the executive director of the state ACLU branch, told me. “They want the money to do their job, we want them to have the money to represent our clients.”
Similar lawsuits in Missouri and Florida—where public defenders also started refusing cases after funding cuts—led to federal judges essentially forcing legislatures to appropriate more funding by dismissing cases and leaving the consequences (and political fallout) of defendants walking free in lawmakers’ hands.
Some see the crisis as an opportunity for change. “The whole system is badly broken,” Esman said. We’re hoping that this crisis can be an opportunity to revisit the whole system, top to bottom.”
Having to rely on severely overworked public defenders—or having to pay for a private lawyer to get your loved one out of prison—has a ripple effect among the families of the city’s mostly black and Latino defendants. Every weekday, parents and siblings and grandparents gather in the halls of the courthouse to wait for their relatives’ cases to be heard.
The cases start at magistrate court, where people charged with criminal crimes make their first appearances. On a recent afternoon, about 10 men, all but one black, filed into the courtroom in bright orange jumpsuits. A judge asked each one: Do you have a lawyer? Are you employed? How much did you make last month? Based on their answers, the judge appointed most to be represented by a public defender.
That’s when a public defender would stand up and refuse to take a new case. But on this day, Barksdale Hortenstine Jr., the bearded defender on duty, took all of the new defendants.
Hortenstine hurried into a small, divided booth in the back of the courtroom where he met with each new client. They talked through a thick panel of hazy glass, almost like a church confessional. The defender only had about five to ten minutes with each defendant before he was replaced by another in an orange jumpsuit.
Once the brief conferences were done, the judge set bail for each man, with Hortenstine arguing for a lower number and the prosecutor trying to get a higher one.
First up was Thomas Garner, a large man who was charged with selling drugs. Hortenstine said he was supporting his three kids with his job as a security guard, and that he’d never missed a court date. The judge set bail at $20,000.
Nicholas Collard, a skinny 22-year-old with frizzy hair, faced charges of domestic abuse and aggravated assault, including pointing a gun at his girlfriend. He had 1- and 2-year-old kids, Hortenstine said. He got a $47,000 bond.
Bradley Newman, a tall, well-built man with long black braids hanging to his neck, looked down as charges of drug possession were read. He was pulled over at a traffic stop and found with a plastic bag of pills and a digital scale, the prosecutor said. But as Hortenstine pointed out, the police report only said that he possessed “unidentified narcotic” pills.
“It is not illegal to possess pills,” Hortenstine said, getting into it. “It is an amazing statement because narcotic is an actual definable term.” The judge agreed, and ordered the prosecutor to come back the next day with evidence to what the pills actually were—or let Newman go free. It was a little victory in a long slog of cases.