A proposal to abolish the death penalty in Louisiana could help prevent a crisis the state’s public defenders say they are hurtling toward, unless drastic changes are made in how the state handles defense for the indigent.
But because the bill does not apply to those already convicted or indicted of capital offenses, the savings in money earmarked for such cases will come slowly. And the state’s district attorneys are taking a hardline stance against the idea, arguing to local lawmakers the move would take away a vital tool in obtaining plea bargains — hanging the possibility of the death penalty over defendants’ heads.
Sen. Dan Claitor, R-Baton Rouge, state Rep. Terry Landry, D-New Iberia, and state Rep. Steve Pylant, R-Winnsboro, are authoring or co-authoring legislation that would end the death penalty. Claitor’s bill will get its first hearing on Tuesday.
Claitor has said the response to his bill is “gratifying,” adding that if this public reaction is indicative, there is a “real chance” he bill can become reality in the current session of the Louisiana Legislature. A former criminal prosecutor in Orleans Parish, Claitor denounces the death penalty as having “failed” as a crime deterrent. Such cases are costly, he said, and rarely are executions actually carried out.
“(Landry and I) are both from law enforcement,” he said in a statement. “Having both served in the criminal justice system, we understand the practical aspects of this issue and, both being Catholics, share the same moral impetus.”
Louisiana has had a fraught relationship with the death penalty. An analysis of death penalty cases from 1976 to 2015 found one inmate has been exonerated for every three executions.
A court last week added to the number of people whose death sentences were reversed, announcing it would not retry Rodricus Crawford, who was previously found guilty in the death of his 1-year-old son and sentenced to death.
The study also found stark racial disparities in how Louisiana uses the death penalty with authors, Frank Baumgartner and Tim Lyman calling the state’s relationship with capital punishment “deeply dysfunctional.” A black man is 30 times more likely to be sentenced to death for killing a white female than another black male, and anyone who kills a white person is six times more likely to be given the death penalty than someone who kills a black person, the authors found.
“The racial disparities even extend into the appeals process, where cases of killers of white are clearly less likely to be reversed,” the authors wrote in the study, adding no white person has been executed in Louisiana for a crime against a black victim since 1752.
Louisiana District Attorney Association Board President Reed Walters, the DA for LaSalle Parish, counters that eliminating the death penalty takes away an important incentive for defendants to agree to plea bargains and bringing closure to the families of victims.
“I have a tool of negotiating to say, 'If you don’t plead, you subject yourself to the death penalty,'” Walters said.
DAs already are lobbying lawmakers to oppose the bill. Rep. Chris Broadwater, R-Hammond, said last week his local DA met with him to voice opposition to the move. Walters said he is unsure what appetite the GOP-dominated Legislature will have for abolishing the death penalty, while Louisiana District Attorneys Association Executive Director Pete Adams said in an email he has not yet polled legislators.
“Those egregious cases are few and far between,” Broadwater said. “But there are those isolated cases where it is a useful tool that can bring about some finality on a plea deal."
Walters argues the move could end up costing more money in the long run. Capital cases are far more expensive to litigate because of extra layers of scrutiny involved—defendants are afforded the right to counsel throughout the appeals process which those convicted of for non-capital crimes are not.
But Walters said there would be such a dramatic increase in the number of people who would choose to go to trial because the death penalty is not hanging over their head that the state would end up spending more on life in prison cases.
“I’m not buying that one,” said State Public Defender Jay Dixon. “There’s no amending a death penalty case … there are layers and layers of protections to ensure you don’t execute an innocent person.”
Often, capital cases traverse “up and down the legal food chain,” Dixon said, and costs rack up. Even if there was a flood of people who wanted to go to trial because they were not facing the death penalty, he said, it would still likely cost less than the state paying to defend capital cases.
For years, criminal justice reform advocates have lamented Louisiana’s unique system of funding indigent defense. The state's budget is about $33 million per year, but most of the funding for public defense comes from local sources like traffic tickets and court fees.
In fact, public defenders in most cases are technically paid to lose; their clients are only assessed fees if they plead or are found guilty. Defenders have excoriated the optics of such a system, though they say it has no impact on how they handle cases.
A lack of funding for defense for low-income people in the state is well documented. In February, a study by the American Bar Association and Postlethwaite and Netterville, a Baton Rouge accounting firm, found the public defender system in Louisiana has the capacity to handle 21 percent of its current cases.
In other words, Dixon said, public defense has around 20 percent of the funding it needs.
Over the years, the state Public Defender Board has outsourced the vast majority of capital defense cases to nonprofit agencies, citing a lack of adequate resources for the districts to handle those cases themselves.
Currently, the state is handling 26 indicted capital cases, and these outside agencies are handling 22. District defenders are handling four of those cases.
Last year, the Legislature enacted a law that kept the public defender funding the same, but required 65 percent of the money to go to each district. The move effectively cut funding for the outside agencies working on death penalty cases, which are infamous for being time-consuming and expensive.
There is little indication the Legislature will hand out more money to indigent defense. When public defenders and attorneys working for the agencies handling capital cases sat before a legislative panel earlier this year, lawmakers asked if there were ways to find savings with the money they currently have.
Even with the extra money for districts, local funding sources have dried up in some places, especially in Baton Rouge where August flooding led to a steep downturn in the amount of tickets and court fees, a trend that has continued in the months since.
And the cut to capital defense presents a host of other issues.
“We’re already on cusp because we cut capital funding by a third,” Dixon said. “We’re probably going to get sued by someone saying we’re not funding capital (defense).”
The roughly $10 million doled out by the state for capital defense before the Legislature shifted the money around dropped to $6.2 million for the current fiscal year. Before, the state would send out a team of people to handle capital cases as soon as they were indicted. Now, a lack of resources has caused public defenders or the nonprofit capital defense agencies to send out only one lawyer in some cases to make sure evidence is kept intact until a full team can take on the case.
“When we had the full array (of funding) this didn’t happen,” Dixon said. “When someone was arrested for first-degree murder, we sent a full team in. It’s not really what’s happening now.”