Monday, April 15, 2024

Royal Alexander: Centralizing State Public Defender Board in a New State Bureaucracy is Ill-Advised

by BIZ Magazine

I strongly support and commend Gov. Landry’s efforts to address the crisis of violent crime in Louisiana.  However, I respectfully suggest that one proposal is ill-advised and does nothing to advance that goal.  Senate Bill 8 seeks to “create the office of the state public defender within the office of the governor for the delivery of indigent defense services.” My interest stems from the fact that roughly half of my current law practice is comprised of work I do at the Caddo Public Defender Office.  In that capacity, I have witnessed firsthand what is required to manage a public defender office in one of our state’s largest parishes.  My concern is twofold.

One, the conservative view of government is that government governs best when it governs least and when it governs at the most local level.  That is for good reason.  In each local public defender office, the district defender knows in great detail their parish, local judges, district attorney, and how best to navigate the local government structure.  Individual parish public defenders across Louisiana take seriously their daily responsibility to see that their offices are empowered to do the very best job possible for their indigent clients. 

No matter how experienced or hard-working an appointed State Public Defender may be, that local connection and insight will be lost.  That’s why removing decision-making authority from each individual parish public defender and consolidating it in, essentially, a Governor-appointed “czar” in a new government bureaucracy undermines the very vibrancy and boots-on-the-ground dynamic that makes these individual offices effective.  

My second concern is of a constitutional nature.  I think S.B. 8 may pose a Separation of Powers issue.  

Federalist 47 defined tyranny as: “[t]he accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

With this in mind, let’s remember that the Louisiana governor’s constitutional responsibility is to “faithfully support the constitution and laws of the state … and see that the laws are faithfully executed.”  That includes criminal laws.  As such, how is it not a conflict of interest and an “accumulation of all powers” for a governor, principally responsible for seeing that the laws are faithfully executed and prosecuted, to appoint the very individual who will head the entity that defends the poor against the execution of those laws, placing that very agency in the governor’s office itself—and also directly impacting the funding public defenders will (or won’t) have to do their jobs?  It’s too much.  Further, when we view this new proposal in light of the fact that the governor already has the power to pardon, grant clemency, and commute sentences, we will have placed in any governor’s hands enormous unilateral power over the life of an accused individual. 

Recall the Louisiana Public Defender Act of 2007 mandates that the state public defender system remain “free from undue political and judicial interference and free of conflicts of interest.”  S.B. 8 gravely undermines that guarantee.

Finally, it is not difficult to imagine a governor who understandably wants to move aggressively against crime, to seek to be reassured that the prospective state public defender appointee is of a like mind rather than that individual being primarily concerned with the legal defense of the poor.  The many capable prosecutors throughout Louisiana are daily bringing to bear against tens of thousands of accused indigents the full coercive weight—and resources—of the State of Louisiana. 

For this reason, it is imperative that the individual who leads the state’s public defenders be, and appear to be, both independent and singularly focused on indigent defense.  There is simply no way a conflict of interest won’t exist if the leader of the body whose sole function it is to defend the indigent is politically and financially dependent upon the governor who appoints that leader and impacts its funding.  Also, if there is an issue with the amount of funding each division of the public defender system receives—for example, local offices versus Capital defense and (501) C 3s—this can be addressed by amending the Public Defender Act of 2007.  There is no need to dismantle the whole system.

The Constitution’s guarantee of due process and a vigorous legal defense requires that these two entities exist independently of one another.

 I hope this proposal can be put aside and re-evaluated.

Shreveport attorney, Royal Alexander, worked in D.C. in the U.S. House of Representatives for nearly 8 years for two different Members of Congress from Louisiana. 

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