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.
Sometimes first appearances can get chaotic. During one Thursday morning court session I attended, an inmate started shouting that he wanted to talk to the judge. He pushed a corrections officer and kept yelling, and the judge ordered him taken back to the jail. A few minutes later, another inmate punched a female attorney in the arm, and appeared to be trying to reach for her neck. She screamed in terror, and a sheriff’s deputy rushed to detain the inmate—derailing proceedings again. A group of about 40 high school students who were squeezed into the courtroom benches on a field trip looked on with ashen faces.
In the hallways outside, defendants and families were waiting for their turn in court, and nearly everyone had a story about how the public defender crisis was affecting them. Trell Williams, 32, said he paid a private lawyer $5,000—a huge chunk of his savings—to help him get out of prison on bond for a gun charge. “It’s expensive, but if you want to be free, it’s worth it,” he said. Friends had told him that “the public defenders, they ain't doing nothing for you.”
Mark Mckenzie, Sr., and his wife Denise sat glumly in the hallway outside one courtroom where their 24-year-old son Malcolm was facing accessory to murder charges. He was being represented by a public defender. “I didn’t even look [for a private lawyer] because it would aggravate me,” Mark said. “I know I couldn’t pay it anyway.”
The public defender “is doing the best he can, I think,” he said. But the lawyer has only spoken with Malcolm while in the courtroom, and never gone to visit his client in prison. It’s been one and a half years since he was arrested, the process clogged by a host of court delays, and the trial hasn’t even started yet.
“He made a mistake, and we’re not going to give him up because he made a mistake,” Mckenzie said. “But the system is designed to incarcerate. If they spent half the money on education that they do on incarceration, you’d have less crime. All these people with college degrees and they don’t see the correlation.”
The public defenders’ days are whirlwinds of different courtrooms, cases, and defendants. They communicate in a flurry of texts, telling each other where they need to be to cover unanticipated cases and letting clients know if charges were dropped or if they won an important motion.
On one Friday afternoon, Thomas Frampton rushed to one wood-paneled courtroom, with sunlight filtering through half-open blinds, where a client was going to be brought in after about five months in prison. “I think the allegations are totally bogus,” Frampton said. But the client was missing—he had been shipped off to a neighboring parish in order to help with jail overcrowding. After the defendant, a 20-something with a bright grin, was finally brought in, Frampton walked over and shook his hand, rattling his handcuffs. Sitting in the front row, he explained the charges, his arm over the kid’s shoulders. And then it was time to rush across the hall again to cover motion hearings in another courtroom. “They drove him five hours here to court so we could have a thirty second talk,” he said, shaking his head.
Earlier that week, he had gotten a case thrown out after his client had been in jail for 170 days without a trial. But he ended up late to another client’s hearing, and the judge told him the next time that happened, he'd be in contempt of court. “Other than being threatened with contempt, it was a good day,” Frampton said.
At their nondescript office down the block from the courthouse, he and the other attorneys hang their suits on clothing racks in their cubicles, to make them last longer. On Frampton’s wall, he’s posted printed-out emails and texts from clients he’s gotten off.
“People don’t trust public defenders for a good reason,” he said over a quick lunch of grilled cheese around the corner from the office. “Sometimes, I just don’t have the time and resources to devote to their case that they need.”
Most of the 42 lawyers, like Frampton, have only a few years of experience—older attorneys have gone on to better jobs with saner workloads. A couple years isn’t enough to handle murders or rapes, but even newbies end up having to take serious cases. Frampton’s first case, which he was assigned the same week he was admitted to the Louisiana Bar, was a heroin possession case that would have resulted in a mandatory life sentence under the state’s strict repeat offender laws. (He got the charges dismissed.)
Most of the staff is also from outside the city. Jeffrey Smith, a New Orleans native who spent 25 years as a public defender before starting his own private firm across the street from the courthouse, said outsiders stick out. “These young guys come in here and are mispronouncing every single street name,” Smith told me. “They just lose credibility with the jury, with the judge.”
Even the staff admits it’s a problem. Frampton, who grew up in D.C. and went to Berkeley Law School, moved to New Orleans for the first time for this job. “The first question judges ask you when they meet you is what high school you went to,” he said. “It can be a significant source of tension.”
Tension between the judges and the defenders has only increased since defenders started refusing cases. Some judges, unsympathetic to the lack of funding, have threatened to hold them in contempt of court, while others are assigning private lawyers to take on cases pro bono. “We understand that we’re in the middle of a budget crisis, but we want to hear them talking about solutions, not problems,” one criminal court judge, who asked not to be named, told me. “Gideon says you’re entitled to a lawyer. It doesn’t say you’re entitled to a great lawyer.”
The public defense system is in bad shape. But thanks to a broader budget crisis in Louisiana, any attempts by state legislators to allocate more funding are going to be a tough sell.
On Feb. 11, Louisiana’s new governor, John Bel Edwards, gave a televised speech offering a dire prognostication on the state budget. If reforms weren’t made quickly, he said, the state would have to make drastic cuts. His proposed budget—intended as a wake-up call for legislators—involved closing the entire Louisiana state university system for a semester. That would also mean a shutdown of the LSU football team, a near-apocalyptic fate for legions of proud Tigers fans. Edwards’ speech became known as the “say farewell to college football” speech.
Perhaps unsurprisingly, the idea of cutting constitutionally-required public defender programs has received far less attention than cutting LSU football. But the crisis could lead to even deeper state cuts for public defenders.
Why has it come to this? Over the last eight years, the former governor, Bobby Jindal, slashed taxes and then pledged not to raise them, setting himself up for a Republican presidential campaign. To maintain balanced budgets, he enacted increasingly creative accounting practices, raiding state funds and essentially pushing budget shortfalls off each year. When he left office in late 2015 to run for president, he left behind a nearly $1 billion deficit. Meanwhile, he floundered in the presidential polls and dropped out before the first primary.
To make things worse, the state’s economy took a hit as oil prices fell over the last few years, with job and profit losses in the oil industry rippling through the state.
“When you combine the mismanagement of the Jindal years and the economic ripple effects of plummeting oil prices, you have the most serious budget crisis in a generation,” said Jan Moller, the director of the Louisiana Budget Project, a think-tank.
In the past few weeks, the state legislature has been engaged in what Moller called a “mad scramble to make sure they could pay the bills.” By raising the state sales tax by 1 cent—leading to the highest combined state and local tax rate in the country—they avoided horrific cuts, to LSU or public defenders, during this fiscal year.
But there are still shortfalls anticipated for the next few years, and legislators haven’t done much to address larger structural issues in the budget, Moller said. That means that there will be very little wiggle room for any increase of funding for public defenders.
On a sunny Friday afternoon the other week, I visited the home of Willie Yarls, 54. His younger brother Darwin is one of the defendants who’s been denied an attorney and one of the plaintiffs in the ACLU lawsuit. Willie, wearing a blue polo with his name on the chest, spoke slowly and warily about how his brother’s situation has affected the family.
The Yarls grew up in New Orleans East, a rough neighborhood, and Darwin served 25 years in prison on an armed robbery case in the notorious Angola prison. He was released on parole in 2012. “He came out with his head on his shoulders,” Willie said. A week after he was released, Darwin got a job loading and unloading Megabuses. Before long, he met a woman, Patty Spears, and they got engaged.
According to Willie, Darwin was a good parolee, showing up to meetings with his officer and staying out of trouble. He was planning to build a family with Spears, and put his past behind him. “Everywhere he went, he had that girl with him,” Willie said. “Whenever you saw him, you’d see her.”
Last October, everything changed. Darwin, 51, crashed into another car early one morning in the Treme neighborhood, and Spears was ejected from the car. She was trapped under the wrecked metal and died at the scene. (Willie, who had been in the car, also sustained serious injuries.) At first, the police let Darwin go free. “You couldn’t get him out of bed for about a week, it really destroyed him,” Willie said.
A few months later, officers knocked on his door with a warrant for his arrest: His blood tests had come back positive for cocaine at the time of the crash. Darwin was charged with vehicular homicide for his fiancée’s death, along with parole violations, which means he could be facing 30 more years in prison.
His bail was set at $75,000, which his family couldn’t afford. Darwin had been unemployed since the accident, and it would take thousands of dollars to get him a private attorney.
But when Darwin walked into the courtroom in an orange jumpsuit in early January for his first appearance, the public defender got up and told the judge that they would be refusing his case. He was among the first defendants affected by the office’s decision to start refusing cases. Willie was sitting in the courtroom that day. “I didn’t believe my ears,” he said. “I don’t understand it, I don’t like it, and I think it’s fucked up.”
Since then, Darwin has sat in the city jail, his case stalled, while his family worried and blamed themselves for not being able to help. First he lost his fiancée, then he lost his freedom, and then he was told that he would not be getting the lawyer he was constitutionally entitled to. He’s left waiting, in jail, for New Orleans to figure out how to give him a fair trial.
Casey Tolan is a National News Reporter for Fusion based in New York City.