Louisiana lawmaker wants governor, legislators to have more control over public defenders

Louisiana House leader proposes eliminating the public defender board

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A powerful Louisiana lawmaker is seeking to rearrange the management of the state’s troubled public defender system — a move that criminal justice advocates and a handful of local public defenders worry could result in less accountability and slash funding for the state’s most complicated public defense cases.

House Speaker Pro Tempore Tanner Magee, R-Houma, is pushing legislation to abolish the state public defender board that oversees indigent defense across the state and replace it with an advisory panel that would have little authority. His proposal would also give the governor and legislators more power over how public defense funding — typically  $40 million to $50 million annually  — is spent.

If his proposal is approved, Magee has agreed to dedicate one percent of a 4.45 percent tax he is pushing on raw and crude medical marijuana to fund public defenders. It would raise as much as $2.7 million annually for public defense by 2026, according to a nonpartisan analysis by the Legislature’s fiscal staff. 

“I think the biggest issue facing public defense is funding,” Magee said at a hearing last week on his proposal. “[Public defender] independence will come with a steady funding stream.”

Magee’s legislation has already cleared the Louisiana House Committee on Administration of Criminal Justice. He’s expected to bring it up for a vote on the House floor Thursday. 

Louisiana public defenders desperately need more financial stability and funding. In recent years, a few local public defender offices have needed the state to bail them out of dire financial circumstances.

Magee said funding from his medical marijuana tax would be more stable than the current public defender funding sources. Yet some defenders have said the trade off isn’t worth what they are being asked to give up.

They worry about what will happen if the state public defender board is eliminated. Instead of an 11-member board, the state will be left with one all-powerful state public defender who has control over budget and hiring decisions, critics of Magee’s proposal said.

Under Magee’s proposal, the 12-member advisory panel replacing the current management board would not have any oversight authority. 

“This looks like nothing else in the country,” said Derwyn Bunton, who runs the Orleans Public Defender Office, last week.

Bunton and other criminal justice advocates said several states are installing public defender management boards like Louisiana has — not eliminating them. In most places with a single, powerful chief public defender, the position is elected and not appointed as Magee has proposed, Bunton and others said. 

“The model across the country has been to go from single defenders to boards,” said Meg Garvey, representing the Louisiana Association of Criminal Defense Lawyers, at a hearing last week.

Magee said his plan would elevate the position of the public defender by eliminating the management board. He said several other of the state’s critical functions are run by a single appointee. 

For example, the Louisiana Department of Health is run by Health Secretary Courtney Phillips, who doesn’t have to answer to a board of health care experts. Magee questions why the chief public defender has to run budget and hiring decisions by a management board made up mostly of attorneys and former judges. 

Criminal justice advocates and a few local public defenders countered that the current board provides some protection from Louisiana’s political whims. The members of the board serve in four-year staggered terms, so that they all can’t be appointed at one time. They are worried that a governor who doesn’t support public defense may select someone as the chief public defender who wants to harm the local public defender offices.

Magee said he has built protections into his bill to make sure that doesn’t occur. Under Magee’s proposal, the chief public defender would come from a list of nominees provided by the Louisiana Supreme Court, Louisiana House, Louisiana State Bar Association and Southern University Law Center. The governor would not be able to pick just anyone. Former judges and district attorneys are also prohibited from taking state public defender job in Magee’s bill. 

Yet the governor would be able to appoint anyone the governor wanted if those entities didn’t provide a list of nominees within 60 days of the job becoming vacant, under Magee’s proposal. Magee’s proposal also allows the governor to fire the chief public defender without consulting anyone. Currently, the state public defender board hires and fires the state public defender. 

With Magee’s legislation, there’s also worry that millions of dollars in funding that are set aside for the most complicated public defense cases — including those involving the death penalty and criminal exonerations — would be cut.

Magee’s bill gives the Joint Legislative Committee on the Budget — which is made up of lawmakers who oversee the state’s finances — the ability to reject outside contracts with attorneys who specialize in death penalty defense, appeals, possible post-conviction exonerations and people serving life sentences for crimes they committed as juveniles.

The state public defender board has typically set aside money to hire outside attorneys for these functions because the cases are complicated and time consuming — and it’s assumed the local district defender offices don’t have the resources to handle them. 

But those contracts for outside attorneys are expensive. The state public defender office will spend $11 million on them in the current budget cycle alone. In recent years, conservative lawmakers have complained the state is spending too much on these types of cases. If lawmakers have more say over these contracts, the attorneys who work on these cases said they believe their funding will be reduced or cut altogether. 

If the contracts are reduced, lawmakers will have to fund another way to provide some of these services. Providing an adequate defense for a person facing the death penalty  is a constitutional obligation. If a person doesn’t receive an adequate defense in a death penalty case, that person can later challenge their sentence.

Some of the other services are not constitutionally required however. The state is not obligated, for example, to pay for attorneys to work on possible exoneration cases, in which people are proven innocent of the crimes for which they were convicted. That funding could be eliminated, attorneys who work on those cases fear.

Frustrated state lawmakers have already reworked the state public defender board recently to give the Legislature and governor more control over the members. The original board — set up by legislators 13 years ago — included members who  were selected by legal groups, including the state’s law schools. 

But after a 2017 law change, members of the state public defender board started to be entirely appointed by the governor (five slots), Louisiana Supreme Court (four slots), Senate President (one slot) and House Speaker (one slot). Critics said this has made the board more political.

The debate over whether the board should be completely eliminated is also taking place at a time when some members of the board and the state public defender, Remy Starns, aren’t seeing eye to eye on the public defense budget.

During a meeting of the state public defender board Friday, a few district defenders pushed back on a budget plan Starns put together. Starns had suggested that some of the funding that would typically have gone directly to defenders’ offices be held back and kept under his control. In some cases, the funding would be released only after those district defenders filled out an application for it, he said.

Both Bunton and Richard Stricks, the district public defender in St. John the Baptist Parish, told the public defender board at the meeting that Starns’ budget plan would cause major problems for their offices. 

Starns’ budget proposal also does not include any funding for the Louisiana Center for Children’s Rights work on the cases of people serving life sentences for crimes they committed as teenagers. In the current year, the state paid over $1 million to the nonprofit organization to handle those cases.

The state public defender board ended up delaying the vote on Starns’ budget proposal from last Friday to May 13 after the concerns over his budget proposal were raised. 

Starns supported an initial version of Magee’s bill.

“The funding device is the best I have ever seen. We will not come up with a better one than this,” Starns said at a legislative hearing on the bill last week.

But recent changes to Magee’s bill could put Starns out of the state public defender job if it passes. Magee is now requiring that the chief public defender have at least five years of experience working as a public defender or for one of the organizations that handles death penalty defense and other complicated defense cases for the state. Starns had not worked as a public defender before taking his current job in January of 2020.