What kind of conditions exist today in Louisiana? If there is a state which does a worse job of providing the right to counsel for indigent defendants I am not aware of it. For starters, local funding for public defenders varies from one local jurisdiction to another, and the state itself is not required to make up the difference. In many instances, revenue for public defenders comes largely from income from fines and tickets imposed by the police -- a perverse system which makes the fair trial rights of indigent defendants dependent upon their direct adversaries in our criminal justice system.
"They are willing to pay for the gas pedal but not the brake," capital defense attorney Ben Cohen told me from Louisiana Monday. The government finds a way to pay for the prosecution but not the defense. The funding crisis for indigent defendants existed at the time Boyer was arrested, Cohen told me, and it exists today. The Court's non-opinion opinion in Boyer, he added, was less a matter of an improvident granting of certiorari and more a matter of the Court's institutional indifference "to poor people sitting in prisons waiting for lawyers."
Take Calcasieu Parish, for example, the very venue in which the Boyer case arose. Frank X. Neuner, Jr., chaiman of the Louisiana Public Defender Board, told me Monday afternoon that he's heard that the police there have largely stopped writing tickets -- the "blue flu," he called it -- because of a dispute between the mayor and city officials. The conflict has cost the Parish $100,000 in revenue -- enough to pay for two public defenders. As a result, hundreds of criminal cases are being handled now by private lawyers, who often have neither the training nor the time to do the job right.
In a parish in the northern part of the state, Neuner told me, another political spat between the police and a district attorney has affected revenue for indigent work there. This is the system that Justice Alito and his conservative colleagues went out of their way Monday to avoid fixing. "All of us are disappointed," Neuner told me, "that the Court didn't take the opportunity to further define the role of the states to provide indigent defense to its citizens." Justice Sotomayor was willing to so define that role. In her dissent, she shared these grim facts:
The Court's failure to resolve this case is especially regrettable, because it does not seem to be an isolated one. Rather, Boyer's case appears to be illustrative of larger, systemic problems in Louisiana. The Louisiana Supreme Court has suggested on multiple occasions that the State's failure to provide funding for indigent defense contributes to extended pretrial detentions. See State v. Citizen, 2004-1841, pp. 14-17 (La.4/1/05), 898 So. 2d 325, 336-338; State v. Wigley, 624 So. 2d 425, 429 (La. 1993); State v. Peart, 621 So. 2d 780, 791 (La. 1993).
There is also empirical evidence supporting that assessment. In New Orleans Parish, for example, a recent study found that more than 22 percent of pending criminal cases were more than one year old. Metropolitan Crime Commission, 2011 Orleans Parish Judicial Accountability Report 1 (July 2012).
Another study found that the average time between felony arrest and trial in Calcasieu Parish, the jurisdiction where Boyer was tried, was 501 days in the years before Boyer's arrest. M. Kurth & D. Burckel, Defending the Indigent in Southwest Louisiana 27 (2003).
More broadly, the public defender system seems to be significantly understaffed. See E. Lewis & D. Goyette, Report on the Evaluation of the Office of the Orleans Public Defenders 28-29 (July 2012) (noting that in New Orleans, public defenders handle approximately 277 felonies per year, which is nearly twice the number recommended by ABA standards (citing ABA Formal Opinion 06-441 (2006))); National Legal Aid & Defender Association, In Defense of Public Access to Justice, An Assessment of Trial-Level Indigent Defense Services in Louisiana 40 Years After Gideon 35, and n. 119 (2004) (estimating that public defenders in Avoyelles Parish handle approximately 792 felony cases per year, or 528 percent of the ABA caseload standard).
Let's be clear about what has just happened in Boyer. In a state where public defenders in one county handle 528 percent of the ABA's caseload standard, where in another they each handle an average of 277 felony cases per year, where a state court concluded that funding delays caused this particular defendant's lengthy delay, where petty politics between the police deprive citizens of their constitutional rights, the Supreme Court found a technical reason to avoid giving any relief to Boyer or to push Louisiana officials to do better to fulfill their constitutional obligations to indigent defendants.