Louisiana Governor institutionalizes political interference
Pleading the Sixth: This week, Louisiana Governor Jeff Landry transferred the responsibility of indigent defense from an eleven-member state oversight board to a single governor appointee. Decisions about employment, contracting, salaries, and funding are now under the purview of a single individual and subject to review by a newly created advisory board only under very limited circumstances.
This week, Louisiana Governor Jeff Landry enacted significant structural indigent defense changes replacing an independent state oversight board with a direct appointee. The Governor proposed SB 8 as part of a nine-day extraordinary legislative session, during which the bill was subject to numerous amendments and multiple hour-long debates. The final bill, though quite different from its introduced version, nonetheless drastically changes the Louisiana indigent defense system.
Indigent defense pre-SB 8
Before SB 8, the Louisiana Public Defender Board (LPDB) was responsible for funding, administering, and overseeing all indigent defense services across Louisiana. Diverse authorities appointed the eleven board members and state law empowered the board to hire a state public defender and executive staff to manage day-to-day operations. The board retained the statutory authority to establish and enforce standards statewide, employ and contract with attorneys to deliver services, and distribute funding received from the legislature.
The system also preserved local autonomy. Each of Louisiana’s 42 judicial districts had a chief defender that determined, subject to board approval, how best to deliver services in their district (assigned counsel, contract defender, staffed public defender offices, or a combination).
Indigent defense post-SB 8
SB 8 eliminates the board and moves the responsibility for funding, administering, and overseeing indigent defense services to a governor appointee. The appointed state public defender will lead a newly created executive branch agency within the governor’s office. The bill sets the state public defender’s term at two years, and does not specify who, if anyone, has power to fire the state public defender.
SB 8 establishes a new nine-member board, the Louisiana Public Defender Oversight Board. Although the new law requires board approval of the governor’s appointee, the governor appoints the majority of board members (four directly and one from nominees submitted by defender associations). The state supreme court appoints two board members, and the president of the senate and speaker of the house each appoint one. Members of the board no longer need to have any experience in or strong commitment to indigent defense, as the prior law required; members need only a license to practice law in Louisiana for at least eight years or to have been a judge. SB 8 also removed a statutory requirement that board membership reflect “racial and gender makeup of the general population of the state” and be “geographically representative of all portions of the state.”
The state public defender now holds the authority to employ and contract with attorneys to provide right to counsel services in the state, with board approval required only for contracts exceeding $250K (including contracts with non-profit organizations in juvenile and capital cases). The state public defender also has the authority to hire and fire the chief defender in each district. The board can only become involved if a chief defender requests an investigation following a demotion or termination.
The state public defender develops the office of the state public defender’s budget, which is not subject to board approval. The state public defender must also approve budget proposals from every chief defender and distribute funding received from the legislature (the percentage of the office’s annual budget that must be distributed to district defender offices increased from 65% to 75%).
SB 8 empowers the state public defender to establish and enforce standards and guidelines for the delivery of indigent defense services. However, the bill has inconsistencies regarding rulemaking authority, and it is unclear whether the new board or the state public defender is responsible for approving local delivery methods.
Independence of the defense function
Indigent defense systems must be able to advocate for what they need to provide constitutionally effective representation without fear of retaliation. That is why ABA Principle 1 recommends safeguarding the independence of the defense function from political influence through a nonpartisan oversight board or commission. By eliminating the LPDB and giving the power to appoint the head of the indigent defense system to the governor, SB 8 has institutionalized political interference.
