The ACLU Is Totally Wrong, But Completely Right

At Fault Lines, Noel Erinjeri writes about the ACLU’s lawsuit against the Orleans Public Defender and its chief, Derwyn Bunton, following the decision to refuse to take on more cases than it can ethically and constitutionally handle.

In its introduction, the complaint on behalf of three detained defendants both explains the obvious and makes a critical error:

3. However, OPD has refused to accept Plaintiffs as clients due to budgetary shortages and excessive caseloads. OPD has instead placed Plaintiffs on a waiting list for appointed counsel. OPD’s refusal to represent Plaintiffs means that they must languish indefinitely in jail without counsel until OPD secures adequate resources to provide them with an attorney.

That these three defendants “languish indefinitely in jail” is certainly true. That they do so because of OPD, however, is certainly wrong. The Orleans Public Defender didn’t arrest them. They didn’t set bail. They certainly didn’t set unmakeable bail. And the OPD neither has the wherewithal to “secure adequate resources,” nor has somehow neglected to do whatever it is the ACLU apparently thinks they should have done to “secure adequate resources.”

4. As long as OPD refuses to represent Plaintiffs, their prosecutions cannot proceed. Meanwhile, Plaintiffs have no access to an attorney for critical pretrial functions that would ordinarily be performed by defense counsel, such as conducting a preliminary examination to challenge their arrests and bail conditions; investigating the allegations; filing motions to preserve potentially exculpatory evidence; or negotiating with the prosecution.

That these three criminal defendants are constitutionally entitled to effective assistance of counsel is beyond question. That this fault is attributable to OPD, however, is not.  The Orleans Public Defender didn’t tell the state, “no thanks, guys. Keep your money. We just don’t feel like representing any more defendants.”  Had that been the case, the ACLU’s complaint would have been directed at the right party doing the wrong thing. It’s not.

5. The public defender’s budgetary crisis and its denial of counsel to Plaintiffs both result from the State of Louisiana’s chronic underfunding of its public defender system. While the legislature yearly appropriates funds for public defense, the public defender system overwhelmingly relies on locally generated fines and fees for revenue.

As shown, the ACLU, unsurprisingly, notes the obvious, that OPD suffers from “chronic underfunding.” Most public defenders suffer from the same malady, and one can find almost no public defender office claiming that it’s funding is so generous that it doesn’t need more money, thank you very much.

But then, the ACLU blames the underfunding in Orleans on the state’s method of funding public defense. That too is a mistake. How the state chooses to establish funding is nobody’s business but the voters. That the state must, somehow, adequately fund public defense to fulfill a constitutional mandate is the point.

Tax ’em. Collect fees, to the extent that doesn’t otherwise violate the Constitution, rent out rooms in the governor’s mansion if they want. Whatever. Fund public defense.

9. Plaintiffs bring this class action under 42 U.S.C. § 1983 on behalf of themselves and those similarly situated who have been or will be denied counsel indefinitely because OPD has refused to represent them.

10. Plaintiffs seek a declaratory judgment that OPD’s indefinite denial of counsel violates their Sixth and Fourteenth Amendment rights to counsel, as well as their Fourteenth Amendment right to due process and the equal protection of the laws.

So OPD lacks the money to hire sufficient public defenders to handle the caseload, and it’s OPD violating the constitutional right to counsel?  Does the ACLU not see the gaping hole in its reasoning? Noel tees up the obvious conundrum:

Just what the hell are they supposed to do? Turn people away and they’ll rot in jail, and if and when they get counsel precious time has been lost. Take them all in and it’s like trying to drink from a firehose…along with a constitutional mandate that not a single drop of water hit the floor. And the defendants are caught in the middle.

Is there a solution? There is, but no one wants to hear it. Provide the money to adequately staff and fund the public defender’s office, and let them do their jobs.

So why does the ACLU sue the OPD when it must realize that the OPD is neither at fault nor in disagreement with the central contention that defendants need to be defended and that it takes money to hire sufficient lawyers to handle the caseload?  Is it that “no one wants to hear it,” or that everybody knows it but nobody outside of the handful of people paying attention gives a damn?  Poor criminal defendants are hardly as much of a fun way to allocate tax revenues compared, say, with a football stadium.

So why didn’t the ACLU sue the state?  Why didn’t the ACLU bring writs of habeas corpus on behalf of detained and unrepresented defendants who “languish” in jail because judges have set bail while the state refuses to fund a constitutionally adequate defense?

I suspect that this is the first step in an unfortunately necessary strategic plan by the ACLU, to establish the existence of a constitutional violation and to do so with a defendant, the OPD, who is both disinclined to dispute the existence of that violation, and can’t raise the defenses that the state could, such as separation of powers when it comes to compelling the state to allocate funds to public defense.

Thrown in, for good measure, is the probability that no Louisiana judge wants to end his career by being the guy who ordered the state to spend its money on poor criminals, as it would be perceived, rather than good times.

Had the ACLU gone after the real culprit, the legislative and executive branches of government, they could expect a response that they have done their part, establishing a public defense office, and it’s now up to the OPD to do its job of defending. Problem solved!

The adequacy of the solution would be hotly disputed, but it then gets into the vague question of what, in a hypothetical sense, is sufficient for effective assistance of counsel. For anyone familiar with Strickland v. Washington, it’s clear that the demands are so low as to be satisfied by the fact that a lawyer can stand up (not to be ableist, but) and breathe. Thanks, Supreme Court.

Or to look at this differently, OPD’s inadequate funding creates an obviously untenable situation, which is being paid for by indigent defendants languishing in jail for lack of counsel. While OPD can’t do a damn thing to fix the problem, other than provide ethically incompetent representation, the challenge to the constitutionality of this massive failure has to start somewhere.

Whether this strategy will prevail remains a mystery, as the bottom line remains that the state just doesn’t want to pay for enough attorneys to do the job, fulfill the mandate and provide effective assistance of counsel, as the Sixth and Fourteenth Amendments demand. But something has to give, as the wheels of justice can’t keep grinding up the bodies of the indigent because the rest of government has better, funner, things to do with its money. And because there is no clear and certain means by which to compel government to fulfill this constitutional mandate.

17 comments on “The ACLU Is Totally Wrong, But Completely Right

  1. JAV

    If you’ll allow the question, is this an example of how the state “does justice” while the defense counsel “defends”? While there is the risk of social disapproval, the prosecutors and judges are in the driver’s seat to consider alternatives to high bails and letting people sit in jail because the OPD can’t in good conscience provide an appropriate defense?

    1. SHG Post author

      Yes and no. While the ethical demands are vastly different, this is about money and whose duty it is to assure that every defendant receives his constitutional right to effective assistance of counsel. While the ACLU and OPD are the facial parties in interest, it’s the government’s duty to put up the money that enables the system to work.

  2. Richard G. Kopf


    This is the best example of why electing judges is a terrible idea. A life-tenured judge could dismiss any criminal case for which the government failed to supply a competent criminal defense lawyer by the time of the first appearance. While that would certainly be the actions of the dreaded activist, the activist could sleep deeply at night knowing that the Constitution has real meaning to real people.

    It would take serious guts for an elected judge to follow the path outlined above. I doubt I would have the courage. And, maybe that’s the point.

    All the best.


    PS Noel’s experience in Missouri that involved appointing members of the bar to serve as pro bono counsel to take the PD overload is a possible suggestion also, except that appointing a bankruptcy lawyer to handle a criminal case is a little like substituting a steak made out of soybeans for the real thing. It looks good but tastes awful.

    1. SHG Post author

      Had the judges been doing their duty of being constitutional guardian, the problem would be solved quickly. But then, no elected judge could take the risk, as you note. That said, how many appointed judges believe strongly enough in the Constitution, their role as guardian, to toss prosecutions for lack of satisfying the Sixth Amendment’s mandate? At least elected judges have an excuse, even if its pathetic and cynical. Appointed judges wouldn’t do it for an even worse reason.

      As for Noel’s Missouri experience, it’s not pro bono when someone is forced into representation. It’s slavery. That ain’t right. And the cost of appointed lawyers is far more expensive than public defenders, and almost invariably not as good on the whole. At its worst, it’s the bankruptcy lawyer doing something about which he has no clue. That would be the poster boy for the public pretender. There are no good options to a properly funded public defense.

    2. John S.

      It may be trite, but if a judge fails to be just because they fear the consequences, then they don’t have much right to pass judgement on others. Would you suggest that when prosecutors give cops passes, the problem is that we need life tenured prosecutors?

      Further, I’ve yet to hear of all the judges itching to hold the state’s feet to the fire for blatant violations of defendants rights of most any sort; would life tenured judges receive not just newer, swankier robes but glasses thick enough for them to see the miscarraiges of justice great and small they ignore day to day as it is?

      Like Dorothy, the judges have had the power to fix this all along. Corruption or cowardice; pick one, but it certainly didn’t make much difference to Kalief Browder or the thousands more who have had their lives ruined without becoming a headline.

  3. John Barleycorn

    Due to budgetary concerns all arraignments will now be held at the Lido Hotel.

    All rise, court is now in session the Honorable Judge Willie presiding.

  4. Marc R

    So the LA constitution guarantees a uniform funding system. The legislature established the LA PD Bd to allocate these funds amongst the parishes. This has resulted in OPD not having close to adequate funds but the lawsuit states 5 districts (especially near highways) have budget surpluses. So why is OPD and not the LA PD Bd, who is violating the state constitution not providing a “uniform” funding mechanism (and 6th Amendment), the Defendant.

    I see suing the PD because that’s the low-hanging fruit of all the judicial-type agencies, but was OPD picked to sue a municipality versus the real culprit (per their complaint) the state PD board who is a state agency? Wouldn’t the agency mandated to provide funding be more appropriately liable than an underfunded parish victim?

      1. Marc R

        The ACLU is justly mad but they sue a victim parish of the legislature’s failed program rather than the state board. Or the ACLU is justly mad but it’s the executive’s fault not equally allowing the pd and state to get similar funding and not the pd’s fault. The point is, the ACLU’s feelz are in the right place, but the legal action is wrong, against the lesser possible culpable parties, and hurts those on their same side?

        1. SHG Post author

          Not quite. First, note that they sued the state pd as well, but the problem here isn’t with the distribution of funds, which won’t solve anything, but the inadequacy of funding. If the first step in the process is to establish the constitutional violation, consider where next step would go? Think of how the puzzle would fit together to achieve an ultimate necessary outcome you can’t achieve directly.

  5. L

    Just curious–do you think this is a results oriented suit and it was easier to sue the PD’s office than the legislature? With a court order in their favor, then maybe the PD’s office will have more leverage to secure funding. Additionally, legislatures everywhere can then take success as a sign that they need to proactively address this issue or be sued.

  6. Blake Feldman

    Is your criticism of the ACLU taking issue with the state’s method of funding public defense limited to whether this lawsuit is an appropriate vehicle for that issue, or do you think the method is legitimate? Maybe that’s a false choice, but I’m curious. I think that equal justice requires appointed counsel a certain level of political independence, but I’d imagine that a lot of people who would call me idealistic would agree that a bare minimum there shouldn’t be such a blatant conflict of interest.

    1. SHG Post author

      I’m not really criticizing the ACLU, as much as theorizing the tactical benefits of this suit. If the suit was all there is to it, then it would be foolish endeavor. Effective representation of counsel requires more than a warm body, and the best this suit, standing alone, would accomplish is shuffling indigent defendants in and out of court, each getting their 12 second standing next to a warm body. I give the ACLU far more credit than to think that will satisfy the defendants’ constitutional rights or is worth the effort of this action.

      What I anticipate is that this is a foundational step in a broader plan to create a constitutionally untenable position for the state’s funding (not method, but funding; no one can tell the state how to raise the money, but the courts can most assuredly tell the state to find a way to fulfill constitutional mandates). So yes, it’s false choice, in that you focus on method.

      As for political independence, that’s for the PD to assert, regardless of how funds are provided or what method is used. And if funds come with political strings attached, it raises a separate issue that will require a separate response. While one can anticipate problems, and try to head them off along the way, they are speculative and anticipatory. One can only address the situation that exists, and if it begets further problems implicating separation of powers, they may have to await ripening into a case and controversy to be addressed.

  7. Eric Christenson

    Well, there’s a way out of this, that would cause sufficient funding to be established right quickly — make it clear that if a defendant cannot afford counsel, and the PD cannot give it, then charges are tossed…and the defendant walks…anything else is a violation of rights. Of course, it needs to be backed up by PERSONAL incentives from the prosecuting attorneys and arresting policemen involved. A little restitution for wrongful imprisonment wouldn’t hurt, either.

    Yes, like the exclusionary rule, it has sting…but that is precisely the point…rotting in jail is *not* allowed unless the state is prepared to do due process.

  8. Pingback: Indigent Defendants Deserve Better! - Teens in Prison

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