In the first half of 2024, many states have made significant strides in improving their public defense systems and bringing them into closer compliance with the ABA’s recently revised Ten Principles of a Public Defense Delivery System. ABA Standing Comm. on Legal Aid & Indigent Def., Ten Principles of a Public Defense Delivery System (Aug. 2023). At the start of the year, Pennsylvania, which previously provided no public defense funding at the state level, enacted a budget that included $7.5 million allocated for public defense and called for the creation of a statewide indigent defense board. While the funding burden still largely rests with individual counties, lawmakers have described this measure as a first step toward more robust funding. Paula Reed Ward, For the First Time, Pa. Will Provide Counties with Funding to Help Indigent Defendants, TribLive (Dec. 14, 2023). If Pennsylvania continues on this path, it could become in compliance with ABA policy, which, like the Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963), provides that the responsibility to provide adequate public defense in state criminal charges rests with the state itself. Also this year, South Dakota, the only other state in the country that also placed public defense responsibilities entirely on local governments, followed suit. Although South Dakota is an overwhelmingly conservative state, Republican Governor Kristi Noem praised the new law, stating that a “strong criminal justice system . . . includes the Sixth Amendment right to legal counsel.” Seachlight Staff, South Dakota No Longer Only State to Saddle Counties with All Indigent Defense Costs, S.D. Searchlight (Mar. 20, 2024).
To be sure, these states have significant additional strides they must make to ensure that all people facing criminal charges promptly receive the assistance of a well-trained, qualified, and independent defense attorney, but these recent reforms at least acknowledge that the existing system was not working and needs to be improved. The same cannot be said for some other states, which, despite widespread and recent news coverage of overworked and underpaid public defenders all over the country, turned down opportunities for basic reform, or even took steps backwards. These issues arose in the context of broader debates about criminal legal reform and crime rates. Much of the recent fearmongering over crime has little basis in fact. The increase in crime that corresponded with the COVID-19 pandemic has already subsided, and the crime rate continues to fall, with both violent crimes and property crimes falling by about 15 percent in the first three months of 2024. Josh Campbell & Devan Cole, Violent Crime Is Sown and the US Murder Rate Is Plunging, FBI Statistics Show, CNN (June 10, 2024). Even if the country were truly in the grip of a crime wave, however, that is no excuse for allowing public defense services to suffer. Whether crime is high or low, it is important to ensure that no one is unjustly convicted or punished. Yet, in some places, public defense has been caught up in culture war battles that echo divisive and bigoted rhetoric of the past.
In Mississippi this year, legislators balked at an opportunity for modest reforms. Extreme deficiencies in Mississippi’s public defense system have been well reported, and people who are eligible for counsel must often wait months before an attorney is appointed. Others never receive appointed counsel at all. In 2017, in an attempt to bring some uniformity and clarity to the issue, the state supreme court mandated that trial judges develop a written plan for appointing counsel to indigent defendants, but as of 2023, only one of Mississippi’s 23 circuit courts has complied. Caleb Bedillion, Mississippi Courts Won’t Say How They Provide Lawyers for Poor Clients, ProPublica (Sept. 18, 2023). In one county, local judges appointed lawyers for only about 20 percent of the felony defendants who came before them in 2022. In most of these cases, it appears the judge never even informed the defendant of their right to appointed counsel. Caleb Bedillion, This Mississippi Court Appoints Lawyers for Just 1 in 5 Defendants Before Indictment, Marshall Project (Feb. 22, 2024).
Given these problems, it was promising when the Mississippi House of Representatives Judiciary Committee held a hearing on the need for major public defense reforms in 2023. In the hearing, public defense professionals from around the state testified about low pay, high turnover, and lack of parity with prosecutor funding. In one county, an experienced public defender quit the office to become a prosecutor in the same jurisdiction because the new job came with a $35,000 raise. Testimony from a state supreme court justice, Jim Kitchens, echoed the concerns of public defenders. These issues are not surprising given that Mississippi ranks last among the states in money spent per person on public defense. Jeremy Pittari, House Committee Considers Disparity in Providing for Public Defense in Mississippi’s Criminal Justice System, Magnolia Trib. (Oct. 13, 2023).
Yet, when Mississippi legislators were given the chance to consider very modest indigent defense reform bills in 2024, they rejected all of them. This included a bill that would have authorized the state public defender to issue performance standards for local public defense providers, a basic role of any state public defense agency. One legislator, who voted against the bill and who has personally benefited from the current public defense system as an attorney accepting indigent appointments in his home county, implied that implementing basic standards would create a big government problem that would allow “one individual,” the state public defender, to create standards that are “binding on all 82 counties.” Mississippi legislators also rejected bills that would have allowed public defenders to access the state’s electronic court filing system for free, a benefit already afforded to prosecutors. Likewise, a modest pay increase for the lowest-paid public defense providers in the state was also rejected. Caleb Bedillion, MS Lawmakers Considered Modest Public Defense Reforms. They Rejected All of Them, Clarion Ledger (May 9, 2024).
While Mississippi’s failing public defense system treads water, Louisiana chose to take steps backward this year. The state, led by its conservative new governor Jeff Landry, enacted a slate of tough-on-crime reforms to address an alleged, but not statistically supported, “out of control” crime problem in the state’s majority Black population centers. In reality, violent crime is declining in New Orleans and Baton Rouge, and in New Orleans many violent crime rates have fallen significantly faster than in the rest of the country. Nonetheless, the vast overhaul allows more children to be tried as adults in criminal proceedings, increases penalties for violent and nonviolent crimes alike, and expands the use of the death penalty. Sam McCann, Louisiana Legislators Are Trying to Keep People in Prison Longer. It Won’t Make Anyone Safer, Vera (Apr. 23, 2024).
Also tucked into the reform was a major change to the state’s public defense system. Prior to this reform, Louisiana’s public defense system was controlled by an 11-member board, who controlled the budget and hired the chief state public defender with a relatively independent mandate to ensure quality public defense. Now, however, the governor appoints the chief public defender directly. Julie O’Donoghue, Proposed Louisiana Public Defender Overhaul Is a Power Grab, Critics Say, La. Illuminator (Feb. 14, 2024.). This change flies in the face of best practices and ABA policy. The ABA’s first Principle of a Public Defense Delivery System provides that public defense systems should be independent and shielded as much as possible from political and judicial influence, specifically stating that “a nonpartisan board or commission should oversee the Public Defense Provider.” ABA, Ten Principles of a Public Defense Delivery System, supra. Such safeguards are meant to ensure that defense providers make decisions based on what is best for their clients, instead of based on political expediency or fear of reprisal. Indeed, the legislative change was widely believed to be motivated by the governor’s desire to secure the position of the sitting state public defender, Rémy Starns, who had clashed with the board over his desire to cut spending and institute a contract system for appointed counsel that would significantly slash fees. And after the bill passed, that is exactly what happened: Starns received his gubernatorial mandate, which shielded him from board oversight, allowing him to implement public defender salary cuts by as much as 51 percent by April 2024. In a state where public defense services had already been criticized for being underfunded, these changes will only serve to further erode Louisiana’s constitutional protections. Lauren Gill, Landry’s Power Play over Public Defense in Louisiana, Bolts (Apr. 19, 2024).
That these regressive changes are taking place in deep southern states with a history of denying constitutional rights to Black and other nonwhite citizens is especially troubling, given that Black people are disproportionately incarcerated in these states. This troubling history is reflected in the rhetoric surrounding these reforms. Louisiana Governor Landry’s gubernatorial campaign was marked by fearmongering about “incompetent mayors and woke District Attorneys” in Louisiana’s majority Black cities, while he largely ignored crime in rural, whiter areas of the state. Landry has even referred to a federal consent decree in New Orleans, which was designed to protect citizens after police abuse in the wake of Hurricane Katrina, as a “hug a thug” program. Piper French, Jeff Landry’s Bid for Louisiana Governor Has Been a Crusade Against Its Cities, Bolts (Aug. 31, 2023). Meanwhile, Mississippi’s failure to reform its public defense systems came only a few months after the state created a special judicial district in the majority Black city of Jackson that removed the power of local voters to select their judges and prosecutor and handed it to the majority white legislature. Emily Wagster Pettus, Judge Allows New Court in Mississippi’s Majority-Black Capital, Rejecting NAACP Request to Stop It, AP (Dec. 31, 2023). The continued denial of Sixth Amendment rights in these states shows that we are still living in the shadow of Jim Crow.
