Rationing Justice

Any pretense of criminal justice in New Orleans has been scrubbed away by the flood waters. Especially if you are poor, justice is hard to come by. In its recent report, the U.S. Department of Justice concluded that justice is “simply unavailable" for the poor in New Orleans. No doubt that’s true for the public defender system, which has been chronically, and unconscionably, underfunded. (The public defender represents the vast majority of those arrested.) Discount justice translates into a pared down Bill of Rights. The familiar right to counsel and due process are reserved, for the most part, for those who can afford private counsel. In Louisiana, prosecutors have 60 days from the date of arrest to pursue (or decline) formal charges against those in custody. Except for having, at best, a few moments with a public defender at a bond hearing, indigent defendants arrested in Orleans Parish won’t see a lawyer or daylight until charges are filed. And rest assured that Eddie Jordan, the Orleans Parish District Attorney, will use every bit of allotted time to make up his mind. “Innocent ‘til proven guilty” is a virtually unknown concept in Eddie Jordan’s world. There is no urgency to weed out the innocent for a D.A. who admittedly prefers to keep everyone locked up as long as possible. Probable cause be damned. (Welcome to bizarre-o world where the D.A. remains free to, and often does, pursue charges even if a neutral magistrate has previously found no probable cause to support the arrest.)

Katrina has compounded the problems for the poor. There now are fewer public defenders by roughly half, but the case backlog has grown exponentially. There were as many as 6,000 cases backlogged after the hurricane, and approximately 3,000 remain. (To say nothing of the 50 or so new cases coming in every day.) Those are people – many innocent – that remain jailed since Katrina awaiting trial, many of whom have not had any meaningful representation. The system simply does not have currently the resources to provide much more than ornamental legal representation to everyone who depends on the public defender system. That is not justice. As Supreme Court Justice Hugo Black observed four decades ago, we must not ration justice if we are to preserve our democracy. Let’s not test the theory.