Proposed Louisiana public defender overhaul is a power grab, critics say
26th February 2024 · 0 Comments
By Julie O’Donoghue
Contributing Writer
(lailluminator.com) — A proposal to move Louisiana’s public defender system under the governor’s direct control has alarmed attorneys, local defense attorneys and retired judges.
Critics describe the proposition as a power grab by the sitting state public defender, Rémy Starns, who has clashed with the Louisiana state public defender board that oversees his office.
“It certainly has his fingerprints all over it,” said Frank Neuner, a Lafayette attorney and a former chairman of the public defender board from 2008 to 2012.
Senate Bill 8, sponsored by Sen. Mike Reese, R-Leesville, would transfer authority over the state public defender system’s $52 million budget and its personnel from the 11-member board solely to the position Starns currently holds.
The bill takes away the board’s power to hire the state public defender and gives it to the governor, contingent on Louisiana Senate confirmation. Once selected, the state public defender would serve a six-year term.
Critics worry the proposed structure doesn’t create enough distance between the state, which technically brings all charges against people accused of crimes, and the criminal defense system.
The governor’s direct role in executions could also create a conflict of interest for the state public defender, who pays for attorneys representing clients facing the death penalty.
“From a pure separation of powers perspective, I don’t think it’s a good idea for the executive branch to choose the district defenders in each district,” said Ross Foote, a former state public defender board member and retired state judge from Alexandria whose wife, U.S. District Judge Elizabeth Foote, serves on the federal bench in Shreveport.
“If this bill passes, politics is front and center,” Foote said. “There’s essentially no checks and balances.”
Starns said in an interview Friday he isn’t behind the legislation, but he supports the proposal and hopes Gov. Jeff Landry would consider keeping him on as state public defender if it passes.
“The governor is responsible for this bill,” Starns said. “It’s going to save the public defender system.”
Reese filed the measure for consideration in the Louisiana Legislature’s special session on public safety. An overhaul of public defense management in Louisiana would touch far more people than most of the other criminal justice changes Landry is pushing.
Public defenders represent nearly every criminal defendant in the state. In fiscal year 2022-23, 88 percent of people charged with crimes relied on a public defender, according to the state public defender’s most recent financial report. Collectively, public defenders had 142,000 clients during that budget cycle.
District defenders, who manage Louisiana’s 37 local public defender offices, are uncomfortable with the proposal. In a rare move, they voted overwhelmingly last week to oppose the legislation.
Several declined to be interviewed for this story or didn’t return phone calls seeking comment. A few said they feared speaking out publicly against the bill would cost them their job.
If the legislation passes, the new state public defender will have the discretion to fire any of the district defenders. Once terminated, there isn’t an appeals process in place to overturn that decision included in the legislation unless the state public defender personally chooses to change their stance.
Reese’s bill also calls for significant changes in how district defenders and rank-and-file public defense attorneys are compensated.
Currently, local public defender offices have a mix of full-time staff attorneys and private lawyers working on a contract basis to meet their needs. The proposed legislation would eliminate all public defender attorney staff positions in local offices and move solely to a contract system.
Starns has pushed for an all-contract system for years, but critics say the change would cost staff lawyers across the state their health care and retirement benefits. It might also create a massive work shortage.
The Louisiana Board of Ethics has advised staff attorneys in public defender offices to avoid returning to the work as contract attorneys for at least two years.
Critics of Reese’s bill said the prohibition could create gridlock in court if public defense attorneys were suddenly pushed out of their government jobs and also not allowed to resume their work through private contracts over the short term.
The bill also reverses pay raises the state public defender board recently put into effect for district defenders, over Starns’ objection, in September.
Current and former board members said they needed to approve the pay raises to close wide gaps in district defender pay. Until recently, a district defender’s compensation didn’t necessarily reflect their experience, workload or size of their office. Some district defenders hadn’t received a pay increase since 2007. The board wanted a more standardized approach.
“My appreciation of any board in general is to act as the guardrails in terms of action, advice and direction,” said Frank Thaxton, a current public defender board member and retired judge from the Shreveport area who supported the pay increase.
If Reese’s legislation passes, many district defenders would not only see a pay cut, they would also be dependent on the state public defender to restore their compensation to current levels and approve any future pay hikes.
The proposal also removes current requirements for women and people of color to be considered for district defender positions.
Flozell Daniels, a former state public defender board member from New Orleans, said Reese’s bill is designed for the state public defender to wield as much power as possible over district defender hiring because, he believes, it was crafted by Starns personally.
“He wants to maintain control in a way that allows him to pick the winners and losers,” Daniels said in an interview Friday.
“This is ripe for corruption,” Daniels said.
Daniels and others also believe Starns was behind a legislative proposal in 2021 to weaken the state public defender board. That proposition ended up scuttled after Neuner, the former board chairman and a prolific political donor, put pressure on Lafayette senators to kill it.
But this time, Neuner said he won’t have the “political stroke” to get the bill pulled.
Louisiana lawmakers have often expressed skepticism about the state public defender board. They don’t agree with how much money the board spends on private attorneys for death penalty cases and other niche areas of criminal defense.
Last June, the board voted to pay around $8 million to nonprofit law firms who represent death penalty defendants, people sentenced to life in prison as teenagers and those who might have been wrongfully convicted and qualify for exoneration.
Legislators have often wondered why the public defender board approves such massive contracts, especially when so few death penalty cases are active. In the 2022-23 budget cycle, approximately $6 million in payments – which often exceed $1 million for each nonprofit capital defense organization – covered work for just 23 cases.
Recently, though, the public defender board has also questioned whether the state might be spending too much money on capital defense. In June, the board actually voted down the capital defense contracts proposed by Starns initially, hoping to negotiate a lower price point with the attorneys.
Then a few weeks later, the members reversed themselves and approved the payments, after Starns argued that threatening to pull the contracts while dozens of clemency applications to end death penalty sentences were active was disruptive and unfair, according to minutes from the June meeting.
Starns, who was also a member of Landry’s transition team for public safety, said he met last week with the governor to discuss the future of public defense.
He said those district defenders and board members opposed to Reese’s legislation might not understand what’s at stake for the public defender system. Landry, a conservative Republican with a law enforcement background, has political allies who want to dismantle the public defense system altogether.
“The governor was going to change the current system regardless,” Starns said. “I’m trying to save the public defense system.”
This article originally published in the February 26, 2024 print edition of The Louisiana Weekly newspaper.
