For those who yearn for the self-proclaimed Halcyon days of civil rights enforcement under Obama’s Department of Justice, it’s unfortunate that nobody told them that indigent defense in New Orleans was in ruins. No doubt newfound progressive icon Sally Yates would have been on it like Vanita Gupta was on transgender bathrooms. If only they knew.*

But the problems of spectacularly underfunded public defense in Louisiana was bad enough before. So prosecutors figured out a way to make it worse.

Jay Dixon was heading home from Baton Rouge to Lafayette one day when he got pulled over for speeding. As the deputy handed him the ticket, Dixon said, he was told to flip it over. On the back, Dixon found instructions saying he could pay the ticket by mailing a $175 money order made out to “DA P.T.D.”

If he paid the ticket that way, the deputy told him, it wouldn’t go on his record. Plus, it wouldn’t go through court, so he wouldn’t have to pay court costs.

“Who wouldn’t want to do it?” Dixon asked as he recounted what happened.

It’s like traffic offense on sale. All you had to do is bypass the entire legal system and pay a bribe to the DA. Cheaper and no record. You would have to be nuts to pass up the offer. Without a record, you not only get a pass on court costs, but the rise in insurance premiums, an enormous savings.

It’s not like the money goes into the prosecutor’s, or cop’s, pocket, right? It’s paid into a legit fund for a public purpose, even if not exactly what the law provides. While a speeding ticket isn’t an arrest, and a traffic offense isn’t a criminal charge, it’s still court process rather than just the strong arm of the law. Except Louisiana is a little different.

Louisiana is the only state where public defenders depend largely on traffic tickets for their funding. Their budgets have been shrinking for years for a few reasons; primary among them is a drop in the number of traffic tickets processed in court.

The duty to provide counsel to indigent defendants isn’t a gift or a courtesy, but a constitutional mandate.  The Supreme Court neglected to mention how this was to be done, leaving it to the states to figure out. Louisiana’s idea was to make defendants pay for their own, which creates the appearance of no burden to the taxpayer even though it siphons money from a revenue stream that would otherwise be available to the state. It smells plausible, if you don’t sniff very hard.

At the same time, it never produced sufficient revenue to fulfill the mandate, leaving public defenders to fill the gap by handling hundreds of cases beyond their capabilities. There would be a warm body next to the defendant, giving the appearance of representation without the substance. The lawyer would have no clue who the defendant was, but plead him out anyway.

Even that was too much for the cops and prosecutors to bear.

Five years ago, public defenders in Louisiana managed to convince state legislators they needed more than the $35 allotted to them from each court case.

Every person ticketed, fined or sentenced in Louisiana is required to pay court costs, which go to the sheriff, the court and other agencies. Public defenders rely on court costs for the majority of their funding.

Public defenders asked legislators for $100 from each case, nearly triple their previous cut, Fontenot said. That was whittled down to $45 after prosecutors and sheriffs associations protested.

“That was a theft of our portion of the fines and forfeitures,” E. Pete Adams, executive director of the Louisiana District Attorneys Association, said.“We let them steal less money than they were gonna steal from us.”

Success, even minor, on one end of the system was like taking food out of the mouths of prosecutor’s kids to give it to the poor and starving. They weren’t going to take it.

In East and West Feliciana parishes, the number of traffic tickets processed in court has fallen 35 percent in the last five years.

The local district attorney has diverted about half of all tickets since 2013, according to public records.

District Attorney Sam D’Aquilla acknowledged his program keeps money out of the court system, but he said he needs it. For instance, one program requires his office to pay officers overtime for working extra hours to write traffic tickets.

“And that’s kind of why we started the diversion program, we just weren’t making the money,” he said.

Diversion, at least, sounds all warm and fuzzy, though D’Aquilla’s office doesn’t actually dedicate the money to diversion, but pockets it. But even if it did, taking the revenue stream to be used to pay for public defense and using it instead to pay for cop overtime isn’t exactly the same thing.

To call this theft or bribes in the legal sense may be false, as it’s not quite Louisiana cops or prosecutors sticking cash in their pockets. But then, they are diverting something here, and it’s funding for indigent defense to their own use. Guess who isn’t seeing the revenues needed to fund their constitutionally mandated function of representing the poor?

Some public defenders in Louisiana see these diversion programs as a cash grab. “My problem is, he’s taking our money, and we need it to survive,” Fontenot said.

Shortly after the public defenders got their law passed and tickets started falling, Fontenot had to cut loose several attorneys who were working on a contract basis.

In their place, judges ordered private attorneys — some with no experience in criminal law — to represent Fontenot’s clients. Some of them were volunteers, but many were not paid for the work.

Much as pro bono is lauded as a means of filling the gap, it’s not the answer and may well facilitate undermining constitutional duties. Instead of proper funding for a sustainable system of indigent defense, a few clueless warm bodies get stood upright in the well to create a photo op in lieu of actual, reliable lawyering. Orleans Parish Public Defender, Derwyn Bunton, reached the point where he said, “no more,” to push the system to crash. Going along to get along failed to provide either adequate representation or move the state to fulfill its duty.

But even the pittance Louisiana was willing to dole out to public defense was more than prosecutors could stomach, so they came up with this scheme to divert funds to themselves. No doubt Sally Yates, whose Justice Department “is charged with fulfilling our country’s promise of equal and impartial justice for all,” would have cleaned up this massive constitutional deprivation. If only she knew.

*To be clear, the DoJ is worse under Sessions than it was under Holder and Lynch. That said, it went from bad to worse, not good to bad. The pretense that the Holder DoJ was wonderful is revisionist history.

H/T Radley Balko