Report Calls for Replacement Of Indigent Defense System
Lack of Standards, Inadequate Funds, Poor Training Cited

By John Caher
June 29, 2006

ALBANY — New York's indigent defense "system" is in such disarray and so grossly fails to meet its state and federal constitutional mandate that it is beyond salvation, a commission appointed by the chief judge reported yesterday.

The Commission on the Future of Indigent Defense Services concluded that not even an overhaul can fix the problems. Rather, it proposes scrapping the time-honored yet roundly criticized patchwork defense network and replacing it with a new, statewide, state-funded system governed by consistent regulations and standards.

It called for an Indigent Defense Commission that would assume responsibility for services across the state. The agency would have broad power to deliver on the constitutional promise of representation for the poor in criminal cases, beginning with the authority to name a state chief defender. The various defense providers under that umbrella would be answerable to the chief defender and beholden to the standards promulgated by the indigent defense agency.

"The commission has concluded that there is, indeed, a crisis in the delivery of defense services to the indigent throughout New York State and that the right to effective assistance of counsel, guaranteed by both the federal and state constitutions, is not being provided to a large portion of those who are entitled to it," the co-chairs, Brooklyn Law School Professor William E. Hellerstein and former state Supreme Court Justice Burton B. Roberts, said in the final report.

Their report, released by Chief Judge Judith S. Kaye yesterday, said indigent criminal defendants in New York are routinely denied even minimally acceptable defense services, partially because there is no statewide oversight and largely due to a "grievous lack of adequate funding by the state." The report was especially critical of the situation in town and village justice courts, where non-lawyer judges usually preside and where, the 30-member panel said, the right to counsel is ignored with alarming regularity.

But even the sweeping proposals outlined in the report do not go nearly far enough to satisfy several panel members. In separate commentary, some said the main report, as harsh as it is, understates the depth and urgency of the problem and fails to establish a mechanism for immediate, comprehensive reform.

"If a defendant appearing in my courtroom is not being provided with the effective assistance of counsel, then I am obligated to intervene and protect the defendant's rights," noted Monroe County Judge Patricia Marks of Rochester (See Profile). "Yet many members of this Commission seem to believe that the Unified Court System is not under the same obligation . . . [T]he judicial branch cannot just stand back and wait for someone else to act while it presides over a system that this Commission has characterized as 'both severely dysfunctional and structurally incapable of providing each poor defendant with the effective legal representation that he or she is guaranteed.'"

Judge Marks, who complained that the "lack of involvement of the courts" has exacerbated the problems, was joined by Plattsburgh City Judge Penelope Clute (See Profile), Bronx Supreme Court Justice Sallie Manzanet (See Profile) and law professors Laurie Shanks of Albany Law School and Steven Zeidman of the City University of New York Law School.

Mr. Zeidman also wrote separately, as did Proskauer Rose corporate and securities partner Klaus Eppler.

"The notion seems to be that it is sufficient, or best, to wait for the Legislature to approve an adequately funded statewide commission," Mr. Zeidman said in a partial dissent joined by Judges Clute and Marks, Ms. Shanks and Long Island Supreme Court Justice Elaine Jackson Stack of Mineola (See Profile). "All seem to agree there is a crisis in defense of the indigent. To wait for legislative action strikes me as an unacceptable response to a crisis."

Mr. Eppler, while praising the study as "truly monumental," said he would have "preferred that the Commission strongly advocate for the immediate adoption of minimum standards by all institutional providers and assigned counsel plans, preferably at the direction of the court system." Judges Clute and Stack and professors Zeidman and Shanks also signed on to the Eppler commentary.

Court's Responsibility

But Chief Judge Kaye made clear that the Office of Court Administration will do everything in its power to address the issue immediately.

"We take this issue very, very seriously," she said. "The courts, and I as chief judge, have ultimate responsibility and we intend to fulfill that responsibility . . . We are committed to taking the necessary steps to alleviate this crisis."

Chief Administrative Judge Jonathan Lippman added that the court system will promptly lobby for a statewide defender, compile data to support its position, require tape recording of town and village court proceedings at state expense and ensure that local judges are appointing counsel "on the spot." Several of those reforms can be addressed through amendments to the Rules of the Chief Administrator, Judge Lippman said.

The findings and recommendations in the commission report largely echo those of several other organizations that have studied the indigent defense problem in recent years. Earlier this spring, for instance, the New York State Association of Criminal Defense Attorneys submitted a draft bill that includes many of the same proposals in the commission report. In addition, the New York State Bar Association and the ad hoc Committee for an Independent Public Defense Commission have called for a statewide system.

Solid Data

But the Hellerstein-Roberts commission findings are especially significant, in part because they resulted from a specific mandate of the chief judge and in part because they rely heavily on a study by The Spangenberg Group (TSG), a consulting group in Massachusetts that has studied indigent defense services nationwide. TSG has worked with the New York State Bar Association and the New York Legal Aid Society, and has conducted studies in 40 states. It is under contract with the American Bar Association's Information Program, which provides technical assistance to groups attempting to improve indigent defense.

TSG's 150-page report on New York's indigent defense system offers hard data to support the anecdotal conclusions the commission reached after conducting a series of hearings around the state (transcripts of that testimony, along with the commission report and TSG's findings are available at www.courts.state.ny.us/ip/indigentdefense-commission/index.shtml).

It shows, for instance, that New York spends far less per capita on defense services, $18.54, than many other states. And it shows that New York — along with Arizona, Maine, Pennsylvania, South Dakota and Washington — remains one of only six states that provide no statewide monitoring of defense services.

Further, The Spangenberg Group's study showed that the hard-fought effort to increase assigned-counsel rates, which finally succeeded in 2003, actually had a negative impact on indigent defense representation. That is because the counties, who were hit with an unfunded state mandate to increase the hourly pay to indigent counsel, shifted their new burden to defender offices or institutional providers. What resulted, according to TSG, was balkanization of an already fragmented system.

Patchwork of Plans

But the scope of the problem and the severity of the crisis seemed to take even commission members by surprise. And apparently the examination of indigent defense in the justice courts was an eye-opening and troubling experience for the panel.

"When the Commission began its work, it did not anticipate discovering the vast range of shortcomings and abuses that abound in the Town and Village Courts throughout the state," the panel said in a footnote to its main report. "In our judgment, the abuses are so serious . . . that they should be examined by a body with specific authorization to scrutinize the manner in which those courts function."

New York's current indigent defense system, like those in most states, was crafted in response to the U.S. Supreme Court's epic holding in Gideon v. Wainwright, 372 U.S. 335 (1965).

To meet the Gideon mandate, the state enacted Article 18-B of the County Law, requiring each county to establish a plan for indigent defense. But it provided little guidance or oversight and, over time, indigent defense became a major financial burden on the counties, resulting in what the The Spangenberg Group described as a "haphazard, patchwork composite of multiple plans that provides inequitable services."

"Since 1965, 62 counties have created their own systems that suffer from a lack of uniformity, oversight and an acute and chronic lack of funding," according to the Spangenberg report. "Every day, and for years, this dysfunctional system subjects indigent adults and children across the state to a severe and unacceptable risk of being denied meaningful and effective representation in violation of their state and federal right to counsel."

Yet it took a lawsuit by the New York County Lawyers Association in 2000 (New York County Lawyers Association v. New York State, 196 Misc. 2d 761), and a virtual strike by 18-B attorneys unwilling to work for hourly rates set in the mid 1980s, before the issue came to the forefront political debate.

In May 2003, the Legislature finally increased assigned-counsel fees, simultaneously calling for a task force to review the sufficiency of the new rates when they sunset tomorrow. But the task force, which was required to submit a report to the governor and Legislature by Jan. 15, 2006, was never appointed and there is no report. Consequently, the rates will not be adjusted or even reviewed this year, and the state seems again on a path where counsel rates remain stagnant for years as the basic office and living expenses of attorneys increase.

Bar groups, such as the state bar, the New York State Defenders Association and the New York State Association of Criminal Defense Lawyers, have continued to push the issue. Most recently, the criminal defense lawyers came out with a specific bill to create a statewide defender. Several lawmakers have expressed general support, but no bill has yet been introduced in the Legislature.

At a press conference yesterday, Chief Judge Kaye was joined by commission co-chairs Hellerstein and Roberts, New York State Bar Association President Mark H. Alcott of Paul Weiss Rifkind Wharton & Garrison and New York City Bar Association President and commission member Barry Kamins of Flamhaft Levy Kamins Hirsch & Rendeiro in Brooklyn. All spoke of the urgent need for total structural reform.

The cost of a statewide defender system is unknown. Indigent defense now costs taxpayers roughly $300 million, with 80 percent of that coming out of local property taxes. Officials estimate it would take roughly $50 million more to implement the proposals and goals of the commission, but no one has yet conducted a cost-benefit analysis.

Whatever the cost, Chief Judge Kaye emphasized that indigent defense is a top priority as she completes her 24th and final year on the Court of Appeals and 14th as chief judge. Her term ends March 23, 2007.

"We know that many of our county providers are terrific, we know that some are less so, we know that the system is sadly in need of repair," she said. "But we also know that the system operates without statewide standards, without statewide oversight. This commission has as clearly and unanimously and unreservedly as humanly possible called for a system that is fully funded by the state, as is already the case in more than two dozen other states, overseen by a single statewide defender. I heartedly endorse that call, and we intend to urge and support every reasonable strategy to achieve that objective."

— John Caher can be reached at jcaher@alm.com