Budget Cuts threaten to Gut Fledgling Reform

The Indigent Legal Services Office (ILS Office), which just got started with the appointment of a director in February of this year, will have an operational budget of only $1.5 million for FY 2011. This is half of the $3 million annual budget envisioned when the Office was created. Born of political compromise, couched in language claiming that a $1.5 million "increase" had been rejected, the budget shortfall threatens to hinder the ILS Office's reform efforts.

The Campaign for an Independent Public Defense Commission decried the cut in a press release on March 28. William Leahy, newly hired Director of the ILS Office and former head of the Massachusetts Committee for Public Counsel Services, also expressed his disappointment. He noted that the progress that the ILS Office and Board have already made in "working creatively and cooperatively with county executives and indigent defense leaders to improve the quality of that representation" will "require more adequate funding than has yet been provided,"

When the Campaign announced last November that the new ILS Board had met and begun a national search for a Director, we said, "Our efforts to see widespread meaningful change in the form of an Independent Public Defense Commission will continue." Those efforts include monitoring threats to advances made so far, like the budget cut reported here, and responding to those threats.

Jonathan E. Gradess, the Campaign Manager, discussed the cut on The Capitol Pressroom on WCNY radio on March 31.

Indigent Legal Services Board Meets, Begins Director Search

At last, all positions on the Indigent Legal Services Board created by statute earlier this year have been filled! The Board held its first meeting on November 1st, and is embarking on a national search to fill the position of Director of the Office of Indigent Legal Services. While this Board is not the Independent Public Defense Commission we still believe New York State needs, its creation holds great promise for improving public defense services. The Campaign thanks its supporters, who helped bring about this first step in much-needed reform in how New York State addresses its public defense responsibility. Our efforts to see widespread meaningful change in the form of an Independent Public Defense Commission will continue; we look forward to your continued help.

The members of the Board are:
• Chief Judge Jonathan Lippman
• Michael G. Breslin (Albany County Executive)
• Judge Sheila DiTullio (Erie County Court Judge)
• John R. Dunne (former member of the Kaye Commission)
• Gail Gray (NYC criminal defense attorney)
• Susan V. John (currently, Assemblywoman from Rochester)
• Joseph C. Mareane (Tompkins County Administrator)
• Leonard Noisette (former director of the Neighborhood Defender Service of Harlem)
• Susan Sovie (Watertown Family Court attorney)

The Bill Creating a Board and Office of Indigent Defense Services has Passed

The Senate passed the Public Protection budget bill containing a public defense reform measure (Part E) late Monday (June 21). The Assembly had acted on Friday, and the bill was sent to the Governor's office Monday night. The Governor’s press release refers very briefly to the public defense reform provision.

This legislation does not create a fully state funded, statewide public defense system headed by an independent commission. It does create an office and board authorized to "monitor, study, and make efforts to improve the quality of services provided under County Law article 18-B" (which covers public defenders, legal aid offices, assigned counsel, and, now, conflict offices, and includes Family Court representation, which earlier reform proposals this year did not.)

Public Defense Bill to be Included in Public Protection Budget

Governor Paterson just announced a new bill to create an Office of Indigent Legal Services and an Indigent Legal Services Board, in the Executive Department, to be responsible for overseeing and improving the quality of public defense services. See the press release here.

The bill differs in some respects from the bill included in the Executive Budget back in January, and has the support of the Executive, Legislature, and Judiciary as well as the New York Association of Counties. Chief Judge Jonathan Lippman, who is to chair the Board, noted that the current public defense system has “produced very uneven results over the years and is broken” and said he is very gratified by the agreement reflected in the legislation.

Watch for details here soon!

Times Editorial Lauds Lippman's Calls for Justice

The New York Times has lauded Chief Judge Jonathan Lippman for his May 6 opinion reinstating the NYCLU lawsuit against New York State and 5 counties for what the Times called "glaring dysfunction in the state’s county-by-county indigent defense system." The editorial also noted approvingly Lippman's Law Day speech in which he supported ensuring counsel for poor people in civil disputes like evictions and foreclosures in which basic needs are at stake.

Saying that adequate legal representation for all is fundamental to justice, the Times added, "That is especially important in tough times."

These are tough times. State legislators and the Governor have been unable to pass a state budget; public defense reform is just one of many important issues caught in the impasse. We remain hopeful that the public defense reform measures proposed by the Governor back in January, with improvements by the Assembly and Senate, will be included in the final budget. Our state leaders should recognize, as did the Times, that fundamental justice must be tended to in these hard economic times.

Lawsuit Challenging Public Defense Deficiencies Reinstated

The lawsuit against the State and five counties for the unconstitutional deficiencies in New York's public defense system just cleared a major hurdle. A majority of the Court of Appeals rejected arguments that the case should be thrown out!

The Court of Appeals was closely divided in Hurrell-Harring v the State of New York, with three judges joining Chief Judge Lippman's decision and two joining a dissent by Judge Piggott.

The decision is a major step in the journey to obtain judicial relief from the ongoing, unconstitutional public defense crisis that has been repeatedly documented and decried. And, as many, including several former Court of Appeals judges, have noted previously in op-eds and elsewhere, the suit provides an opportunity and incentive for the State to resolve that crisis now.

The Court of Appeals decision provides new momentum for reform. The Campaign congratulates the New York Civil Liberties Union, cooperating counsel Schulte Roth & Zabel LLP, and the amici curiae, including the National Association of Criminal Defense Lawyers et al*; The Fund for Modern Courts; 62 former prosecutors signing the Brennan Center's brief prepared with Richards Kibbe & Orbe LLP; The Legal Aid Society; the New York State Defenders Association; and the Innocence Project.

*Other organizations signing the NACDL brief included: New York State Bar Association, New York State Association of Criminal Defense Lawyers, New York County Lawyers' Association, Louis Stein Center for Law and Ethics at Fordham University School of Law, Jacob Burns Center for Ethics in the Practice of Law at Benjamin N. Cardozo School of Law, Criminal Justice Center at Pace University School of Law, Center on Latino and Latina Rights and Equality at CUNY School of Law, and 40 New York State Law Professors.

If a California County Can Do This, Why Can't NY?

"Last month the board of supervisors [of Santa Clara County, California] added $1 million to the public defender's budget over the next two fiscal years to fund attorneys who will staff some misdemeanor arraignments. Although the additional spending comes at a time when the county is struggling with a massive budget deficit, supervisors said there is no price tag to ensuring the legal system is just."

This is from a county in debt-stricken California. Can you think of an NY county where legislators would do/say the same?

Op-Ed Sets Out Powerful Policy Argument for Public Defense Reform NOW

An opinion piece entitled "State does poor job providing legal counsel to the poor" appeared in the Daily Gazette (Schenectady [subscription required]) on Sunday, April 11. Recalling when, as a child, he had put his hand over his heart every school day, Daniel T. Weaver wrote that "all 98 pounds of me pledged allegiance to a republic that stood for 'liberty and justice for all.'" But more recently he has been troubled by things leading him to think that "Freedom and justice are chimeras ‐‐ water on a highway in the dog days, disappearing as you get closer to it." Poor people are not getting the same justice as rich ones, he noted, referring to the NYCLU lawsuit plaintiffs as examples. Cost or other supposedly practical issues, Weaver added, must not override doing what our ideals require. He concluded: "In the end, the cost of injustice is usually higher than the cost of justice. A quick historical review of Dred Scott and the Civil War proves that beyond a reasonable doubt."

Newsday Publishes Brennan Center Op-Ed Urging Legislative Action

An op-ed piece published in Newsday on April 8 noted that not only public defense clients, but prosecutors and the justice system itself, are harmed by New York’s broken public defense system. Alicia Bannon, a Liman Fellow and counsel for the Justice Program at the Brennan Center for Justice at New York University School of Law wrote: "Prosecutors rely on defense attorneys to test theories of guilt and to bring forward evidence of innocence — that’s how the adversarial justice system works. When the system breaks down, prosecutors, and the public, can’t be confident that justice is being done in individual cases."

Referring to the New York Civil Liberties Union lawsuit argued recently in the Court of Appeals, Bannon added: "Must the legislature wait for a court order before it ensures equal justice for all?"

The answer, of course, is "no." Bills introduced as part of the state budget process include steps toward real public defense reform. The growing chorus of voices, including former prosecutors, calling for immediate state action should persuade the Legislature and Governor to come together on this vital issue now.

NY Times: “Albany lawmakers must start upgrading the defender system.”

The New York Times editorialized Sunday about the need to pass public defense reform in the 2010 budget! It notes that passage of legislation to create a “permanent commission headed by the chief judge to monitor defender services and develop statewide standards” would, with a small increase in funding, “represent progress in a bleak budget year.” Supporters of the Campaign have already been asked to contact state leaders in support of the legislation; follow-ups citing the Times – or a first-time contact by those who haven’t yet called, emailed, or written – will help keep the momentum going.

Hon. David A. Paterson
Governor of New York
State Capitol
Albany, NY 12224
518-474-8390
Email from the website.

Hon. John L. Sampson
New York State Senate Conference Leader
409 Legislative Office Building
Albany, NY 12247
518-455-2788
Email address: sampson@senate.state.ny.us

Hon. Sheldon Silver
Speaker of the Assembly
LOB 932
Albany, NY 12248
518-455-3791
Email from the website

Victims’ Advocate and Former Judge Pen Op-Ed Calling for an Independent Public Defense Commission

The Times Union has published an op-ed piece entitled “N.Y.'s poor need qualified legal defense, too.” It sums up the problem in its first sentence: “All New Yorkers suffer when poor people accused of crimes do not have competent defense counsel with adequate tools to provide a reliable defense.” The op-ed highlights the role of deficient public defense representation in wrongful convictions as well as New York State’s low status nationally in terms of how it provides public defense services. The piece concludes by calling for an independent public defense commission and for full state funding of public defense services!

One of the op-ed authors, Susan Herman, wrote "Parallel Justice for Victims of Crime;" an associate professor at Pace University, she is a victim’s advocate who calls for the justice system to meet parallel obligations to victims and offenders. The other, Rhoda Billings, is professor emeritus at Wake Forest University School of Law and former North Carolina Supreme Court Justice. Both are members of the Constitution Project’s National Right to Counsel Committee which issued, just a year ago: “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel.”

The Governor and State Legislature recognize the importance of public defense reform this year.

The Senate and Assembly have both modified the Governor's January proposal for creation of a new office and board by recognizing that the Division of Criminal Justice Services cannot house these entities due to conflicts of interest. Each house places the new Office of Public Defense Services in the Department of State.

Read the Senate resolution can be read here (see page 10).

The Assembly's bill makes a number of other changes. Read Part E of A09706B here (see page 84).

Help intensify the momentum for reform! Please contact the Governor, the Senate Conference Leader, and Assembly Speaker -- thank them for their support for public defense reform and encourage them to:

• create the Office of Public Defense Services overseen by the Public Defense Services Board,
• housed in the Department of State,
• adequately funded, and
• with as much authority for improving public defense services as possible!

A Different Convergence this Gideon Day

A year ago, supporters of the Campaign for an Independent Public Defense Commission from around the state came to Albany on the anniversary of Gideon v Wainwright calling for “JUSTICE NOW.” This year’s Gideon Anniversary brings a new statewide convergence, not of individual people but of legal and political actions. The NYCLU lawsuit will be argued in Albany just days after the actual Gideon anniversary date of March 18. The Executive budget now under discussion in the Legislature includes a proposal for an important, if modest, step toward public defense reform [see Part E]. The Chief Administrator of the Courts just issued, pursuant to a bill in last year’s budget, a rule [subscription to NY Law Journal required for link] to begin implementation of compliance with caseload standards in New York City. (The rest of the state remains without caseload caps.) Proposed changes to the way New York City provides public defense services have led to conflict and, consequently, to news stories in legal circles [subscription to NY Law Journal required for link] and beyond about this too-often-ignored, vital government function.

Gideon Day offers a great opportunity for Campaign supporters to write to their local newspaper, speak on their local radio station, or visit a public official about the burning need for immediate public defense reform. Success stories can be sent to the Campaign via the Campaign’s website or, in the case of published letters or articles, posted here!

Morgenthau Calls for Equal Justice

Former Manhattan District Attorney Robert Morgenthau wrote a Daily News op-ed piece last week headlined: "Pass a law to improve access to attorneys."

In it, he noted the allegations in the New York Civil Liberties lawsuit against the State and five counties for deficiencies in public defense. These, Morgenthau said, "unnerved me so much that, along with 61 other former federal and state prosecutors, I joined a brief authored by the Brennan Center for Justice in which we are urging the New York Court of Appeals to declare that New York's courts must hear the claim for better defense services."

Like the former Court of Appeals justices who authored op-ed pieces last year (posted on the Campaign’s website), Mr. Morgenthau "would prefer to see this crisis resolved through legislation, rather than by court decree." Like them, he hopes the NYCLU suit serves as “the wakeup call for lawmakers to finally do their duty and take on the challenge of providing all New Yorkers equal justice under the law." But, he notes, if the Legislature fails, it will fall to the courts to address the problem "in a way that is fair to the state, the plaintiffs, all criminal defendants and ultimately to the cause of justice."

Black and Puerto Rican Caucus Weekend Panel on Client Advisory Boards and Improving Public Defense

With an Executive proposal pending in the Legislature as part of the budget – watch here for updates – public defense reform is bubbling in Albany!

This coming Saturday the New York State Defenders Association Client Advisory Board will present a panel discussion: “Public Defense Representation from the Client’s Point of View.” The presentation is part of the annual Black and Puerto Rican Caucus legislative weekend. If you will be in town, come by Meeting Room 3 at the Empire State Plaza Convention Center at 3:00 pm. If you can’t be there, please let others know!

Too often, those most affected by public defense problems are not included in discussions about fixing the problems. NYSDA’s Advisory Board has helped change that. It has, among other things:
• created Client-Centered Representation Standards,
• worked with the Association on a series of hearings soliciting testimony from clients and client advocates concerning the quality of public defense in New York State, and
• initiated a project to assist local public defense offices that want to develop or reinvigorate a local client advisory board (see pages 5-6 of article here).

The Campaign hopes that this panel, sponsored by Assemblymember Vivian E. Cook and NYSDA, will inspire all those attending Caucus Weekend to support public defense reform.

Executive Budget Includes Public Defense Reform

The persistence of the Campaign in demanding public defense reform that includes independence has had an impact. In an Executive Budget full of cuts and pain, the Governor is proposing an investment in public defense that includes a new state office and an additional $7 million in state funds for local public defense. The proposed office would have limited duties and responsibilities regarding public defense. It would be overseen by a board that would include members representing the Executive Branch, the Judiciary, county government, and public defense. While operating under the administrative supervision of the Division of Criminal Justice Services (DCJS), the office would report to the board, not DCJS, with regard to policies and standards. The office would recommend distribution to counties of state funds for public defense; the board would make the final decision about that distribution.

This is not the statewide, independent commission heading a fully state-funded public defense system that the Campaign calls for. Still, the need for public defense reform has been acknowledged - and the need for oversight to be independent is recognized in the very first section of the bill. In this way, the proposal is an improvement over a bill proposed two years ago for an office directly answerable only to the Executive. We’ve made real progress!

We are examining the bill closely, and will have more to say about it soon. The proposal is Part E of the Public Protection and General Government Article VII Legislation (Legislation Bill Drafting Commission 12670-01-0). It begins at page 246.

A Mandate Reform Initiative Allowing Office of Conflict Defender Should be Done with Care

The Executive’s announced “Mandate Reform Initiative” includes a provision (#64) allowing counties to create an Office of Conflict Defender.

Facing an immediate fiscal crisis, the State understandably seeks ways to increase cost-effectiveness in the provision of public defense services. Localities have long struggled to provide these mandated services, delegated to them by the State in 1965. The current fragmented system leads to fiscal inefficiencies and a well-documented lack of quality services.

While we believe that ultimately New York State needs to adopt the recommendations made to the Chief Judge in 2006 for an overhaul of the entire system, we encourage changes that will meanwhile improve the quality of public defense services. We oppose measures that would decrease even further the ability of public defense lawyers to provide quality representation to their clients. Any change in County Law Article 18-B should not address only cost savings.

Without seeing the explicit language of the proposed initiative, it is impossible to determine whether it will address the need to ensure quality. If the proposed bill simply adds to County Law Article 18-B the choice under § 722(1) to utilize, in addition to a public defender office, a county conflict defender office, it will represent an opportunity lost to include requirements for ensuring quality. That would be unfortunate given the public defense crisis that has arisen under the current statutory scheme.

What would be even more unfortunate would be to permit, overtly or obliquely, a practice now in use in some counties (though not provided for in the statute) that erodes the quality of public defense services. A change allowing any new form of public defense provider should specifically prohibiting public defense contracts let on the basis of cost alone. Contracts that pay a single lump sum for a block of cases regardless of how much work the cases require gives attorneys a direct financial conflict of interest with their clients; work or services beyond the bare minimum reduces the attorney’s take-home compensation. Use of "low-bid" contracts is universally condemned in national standards for provision of all public defense services.

The proposed change is, at best, a very modest “mandate relief initiative.” It is almost certainly intended to protect existing conflict defender offices in the wake of a recent court opinion finding one such entity to have been created illegally. If this can be done in a way that improves the quality of representation, it would make sense. But if only the question of cost is considered is addressing the court decision, further problems will no doubt ensue. The State, along with five counties, is already defending a lawsuit that sets out major, systemic failures to provide quality representation to public defense clients.

"Civil Gideon" Should not Copy NYS Gideon Failures

Securing “civil Gideon” – expansion of the right to counsel into areas of civil law – would be a “pyrrhic victory” if modeled on New York State’s current implementation of the landmark right to counsel decision Gideon v Wainwright. This was part of the message delivered by the executive director of the New York State Defenders Association today. He testified at a State Senate hearing on “IOLA and the Future of Civil Legal Services in New York State.”

Jonathan E. Gradess – who also directs the Justice Fund and is our Campaign Manager – noted that the clients of public defense lawyers are often the same individuals and come from the same communities as those who need but cannot afford civil legal services. Then he described an idea discussed twenty-five years ago: State-supported holistic legal services (neighborhood law offices) functioning as corporate counsel for the poor to identify and address a range of legal needs. Such a stable, state-level entity, he said, “could function as an advocate for poor people’s legal services in criminal and civil matters, oversee delivery of such legal services, and be the conduit for disbursing funds (to legal services programs, legal aid offices, volunteer lawyer programs, etc.) with real client accountability.“ The Independent Public Defense Commission could be broadened to encompass this concept, he noted. Gradess asked those holding the hearing to consider these broad ideas and to commit to substantial annual fiscal support for civil legal services.

State Bar Priorties for 2010 Include Independent Public Defense Commission

The New York State Bar Association has included creation of a statewide Independent Public Defense Commission in its legislative priorities for 2010. The State Bar will continue advocating for the commission, one with broad powers to adopt standards, evaluate existing programs and service providers, and generally supervise the operation of New York’s public defense system.

As the New Year unfolds, we hope many others will renew and increase their support of public defense reform as well. Lack of resources and oversight across New York State's patchwork of public defense systems continues to erode trust and confidence in the judicial system. We must intensify the call for Justice Now!

Brighter Days Ahead!

Today is the winter solstice -- the shortest, darkest day of the year. Here at the Campaign we look forward to longer, brighter days not only in the physical world of earth and sun, but in the justice system. As New York State starts its annual budget process, we will be working to ensure that public defense is not left out in the cold. We thank our supporters for their continuing support and look forward to better days ahead!