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Opposition to
changing governance of Louisiana's indigent defense from an appointed board
to a gubernatorial designee generated more heat than light and shouldn't derail
an improvement to a system as yet never quite fixed.

SB 8 by
Republican state Sen. Mike Reese
may end up the most controversial bill of the Legislature's Second Extraordinary
Session of 2024. Its initial hearing dragged on for hours with support voiced
for it by State Public Defender Remy Starns and a few others, but most of the time
was taken by opponents, many connected to public defense.

The bill would remove the Louisiana Public
Defender Board from policy-making, leaving only an advisory role, transferring
that to the public defender. Rather than he be an appointee of the Board, the governor
with Senate confirmation would make the appointment, for two years. This would
put contracting and chief district defender hiring solely in the hands of the
public defender, among other things, rather than by the Board which currently
has five gubernatorial appointees (from each appellate district), four from the
chief justice of the Louisiana Supreme Court, and one each from the leaders of
each state legislative chamber, serving overlapping four-year terms.

(Not that the Board has done itself favors with new
Republican Gov. Jeff Landry,
who backs the bill. Chock full of appointees of his predecessor and a chief justice
whose views haven't shown much affinity with Landry's, in the Board's latest
annual report that has a wish list of policy preferences it would like to
see enacted these don't exactly mesh with Landry's.)

Opponents raised two common objections. One holds
no water and people versed in the study of government and law should know
better: that somehow gubernatorial appointment violates separation of powers. It's
an ironic complaint, because if anything the charge would stick better if
applied to the current board having policy-making authority, as the state
judiciary in whose courts defenders will argue appoints four board members. As
well, just as is the governor, the Board is part of the executive branch

But the governor has no power over the state's
judiciary and no involvement with it; the elected executive branch official
with that is the attorney general. Plus, the governor's appointive power is
checked by the state Senate through the confirmation process. And, among the
states that have any statewide authority over public defense, a gubernatorial
appointee is the second-most common method of picking a statewide public defense
policy-maker, in ten states while the commission form at present in Louisiana
is most common in thirteen. Simply, there's nothing remotely unconstitutional
about this arrangement.

Ringing less hollow of a complaint is that the
shift will increase politicization of the office, despite a study
of differing governing structures which doesn't see a real performance difference
between gubernatorial appointee governance or board governance in terms of quality
that would be hampered by politicization. How exactly greater politicization would
occur wasn't covered by defenders of the current system, even as the recent
performance of the Board if not displaying politicization has exhibited a degree
of dysfunction that proponents of the bill like Starns argue would be less likely
to occur under the change.

For example, one recent board member (who died in
office), a private defense attorney holding no contracts with the 26th
District, created controversy when he crashed
Republican 26th District Attorney Schuyler Marvin's official vehicle
into a Bossier Parish bayou. Arriving at the scene, Bossier deputies found numerous
floating beer cans and later tracked down the driver, who had no authorization to
operate the taxpayer-owned vehicle but whom Marvin later said had been "borrowed."
The late driver in 2021 faced only a charge in Marvin's district of failure to
report an accident, to which helped guilty and paid a $100 fine.

The Board also last year removed two chief
defenders. One,
in the 25th, a Legislative Auditor report determined while in office
had issued unauthorized student loan assistance payments (including to
herself), information she shielded from the Board. Another,
in the 19th, it removed apparently at the behest of a state legislator
for personnel problems who was accused
of being hired for political reasons involving both the Board and Starns.

An argument made by Starns and legislative bill
supporters is the Board, including in its previous incarnation prior to 2007,
has a history like this because of its nature as an avenue for political
patronage and is institutionally less capable of holding local defenders
accountable. They say making one person responsible will reduce these problems.

They also noted that because of this history the
Legislature is too reluctant to increase indigent defense funding. Louisiana's
schizophrenic funding mechanism that relies far too heavily on local revenue generation
out of the hands of public defense which then hopes the Board can entice the
Legislature to provide enough money to make up for it that it then hopefully distributes
in an equitable fashion has produced chronic shortages in certain districts.
Bill proponents claim the Legislature will have more confidence with a system like
the one proposed to jack up the money allocated to indigent defense, with a
better structure to oversee district financing and contracting less prone to
parochial and special interest pressures.

Systems like the one proposed work in other states, which historically have
worked better than Louisiana's has, regardless of a recent spate of action by
the Board trying to address dysfunction and questionable decision-making that seems
belated and in a mode of trying to salvage its position. Best of all, the bill's
alterations create greater incentive for a governor and Legislature to get it
right with picking a quality appointee than under the current diffuse lines of
accountability. It's a change that only can improve matters, meriting the bill's
passage.

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