Locked Up Without a Key in New Orleans
This is the first in a series of articles investigating the failed promise of Gideon v. Wainwright. It was reported in partnership with the Investigative Fund of the Nation Institute, with support from The Puffin Foundation.
On April 18, 2011, New Orleans police arrested Clarence Jones, a 41-year-old black man. Clarence contends that he was walking with his cousin Keitha Hyde, running some errands around 11:30 am, when he ducked into an alley to relieve himself. “It was just an empty house, so I went in the backyard out of sight,” he says, talking to me via phone from jail—and when cops turned the corner, he looked guilty. But police contend that Clarence was climbing out a window with pliers in his left hand, apparently scrapping for metal or copper wiring in the gutted building. The cops arrested him and his cousin and took them to the Orleans Parish Prison. On May 13, nearly a month later, Clarence finally appeared before a magistrate in Orleans Parish Criminal Court, who arraigned him on the charge—simple burglary—and set his bail at $10,000 (before raising it four days later to $20,000).
More than sixteen months later, Clarence Jones is still in jail waiting for an attorney to be assigned to represent him. “It’s been hell back here,” he says, explaining that he is living, along with approximately 400 other prisoners, in oversized tents that fill the prison grounds. In the aftermath of Katrina, which flooded huge swaths of the massive Orleans Parish Prison seven years ago, circus-style tents were erected to “temporarily” house the inmates. Today, the tents are still housing prisoners on a patch of barren ground in the middle of the city.
Even worse, the Orleans Parish Prison—already notoriously violent—veered out of control as Jones languished there. Things got so bad that the US Marshals Service pulled its prisoners from the facility in March 2012. Then the Justice Department sent a letter to the New Orleans sheriff in April citing “alarming conditions” in the “violent and dangerous” prison. The detailed list of constitutional violations runs twenty-one pages. Clarence Jones puts it simply: “It’s like we animals. They’re just packing more and more people in. They got us packed to capacity. Lots of us have no attorney. Can’t do nothing but sit back here. We’re just stuck.”
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As an impoverished, incarcerated defendant in a criminal case, Clarence has a guaranteed right to free legal counsel. But in Louisiana, such rights are routinely flouted. Indeed, Clarence is one of 230 people sitting in limbo in the Orleans Parish Prison this summer after a $2 million budget shortfall forced the Orleans Parish public defender’s office to lay off twenty-seven employees, twenty-one of them lawyers. Hundreds more defendants are out on bond, trying to make sense of the court documents being sent to them and wondering whether they’ll ever be assigned a lawyer to help. As the post-Katrina federal dollars dry up and the fiscal crisis forces drastic budget cuts at the state and local levels, one of the areas hardest hit in New Orleans—and in the nation at large—has been public defender offices. When money gets tight, the lawyers charged with protecting the rights of the poor in criminal cases are considered expendable.
Whether public defenders are funded by the state, county, city or some combination thereof, governments across the country are sacrificing lawyers for the poor and putting the constitutionally guaranteed right to counsel at risk. US Attorney General Eric Holder decried the indigent defense “crisis” facing the nation when he spoke to the American Bar Association in February, asserting that programs across the country were “underfunded and understaffed.” Citing “insufficient resources, overwhelming caseloads, and inadequate oversight,” he worried about a breakdown: “Far too many public defender systems lack the basic tools they need to function properly.”
Strapped public defender offices are throwing their hands up in despair. This past July, the Missouri Supreme Court backed public defenders in the state who refused to accept new clients because their office was woefully underfunded. The lawyers complained that their caseloads had swelled to such an extent that they could no longer do a good job for their existing clients. Public defenders in Missouri represent 80 percent of the state’s criminal defendants, which in 2011 numbered 82,896, yet they’re being forced to walk away from people who desperately need a lawyer.
Something very similar happened in New Orleans. Squeezed by budget shortfalls, Chief District Defender Derwyn Bunton announced that he was laying off nearly a third of his lawyers. Bunton cut the entire staff of his conflicts division, the department responsible for representing additional defendants in cases with more than one person charged. (An example of a conflicts division case: a liquor store is robbed by two people and the cashier is shot, then each of the men points to the other as the shooter; they’ll need two separate lawyers.) As a result, a slew of people suddenly lost their lawyers.
If these conflicts division defendants aren’t provided with an attorney and a “speedy trial” can’t proceed, by law they ought to be released from prison. But most of them aren’t released, despite this clear violation of their constitutional rights. Why? For several reasons. First, it’s a Catch-22 for the jailed defendants: most of them need a lawyer to fully grasp how their rights are being violated and help them make that argument in court. Second, there is some linguistic fudging going on: it’s not that they’re being denied representation; these defendants are simply “on a wait list” for pro bono representation. (Since February 2012, the number of defendants on the pro bono wait list has been as high as 543.) Third, due to quirks in Louisiana law, folks can be held up to four months (depending on the alleged crime) before the district attorney decides whether or not to pursue the case. It’s possible that some particularly proactive judge could step in and start setting these jailed defendants free—but it had better be someone who doesn’t mind losing the next election for being “soft” on crime.
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